Judgment Das, J. 1. This second appeal by the plaintiff is from a concurrent decision of the Courts below dismissing a suit brought by the appellant in respect of about 4 bighas of land recorded in khewat No. 5/1 of village Bhatudih. The appellant said that village Bhatudih was one of the villages in Gadi Bharkatta, of which the appellant and before him his ancestors, were the proprietors in possession. It was alleged that one of the ancestors of the appellant, Thakur Darip Singh, gave to Hardeo Mahto, who was the ancestor of pro forma defendants 5 to 8 and thikadar of village Bhatudih, 2 bighas of land in Jalsasan settlement as a service tenure for keeping under repairs an ahar called Sonamunda Ahar. The grant was made by means of a patta dated the 29th Chait, 1220, Fasli. After the death of Thakur Darip Singh, Thakur Brij Mohan Singh succeeded to the gaddi. He, in his turn, made a grant to one Pran Mahto, the son of Hardeo Mahto, of 2 bighas of paddy land for performing the duties of a Mahto, and 4 bighas of paddy land in Jalsasan settlement. The settlement was made in 1231 Fasli under a Sanad dated the 30th Mash, 1231 Fasli. The appellants case was that the grant constituted a service tenure, subject to the burden of repairing the ahar called Sonamunda Ahar. In the survey record-of-rights, the Jalsasan lands were recorded in three khewats, khewats Nos. 5/1, 5/2 and 5/3, and the Mahatoai lands were recorded in khowats, 0/1, 6/2 and 6/3. The pro forma defendants 5 to 8 were recorded in khewat No. 5/1. It was alleged that some eight or ten years before the institution of the suit the pro forma defendants and their cosharees had ceased to repair the ahar, as a result of which Sonamunda Ahar was almost in a dilapidated condition. The appellant then got ready to institute a suit for recovery of possession of the lands, when on 12-2-1945, the pro forma defendants executed a registered deed of surrender in respect of the lands of Khewat No. 5/1. The appellant said that he came in possession, of the lands on surrender by the pro forma defendants. The pro forma defendants had, however, transferred the lands by means of a usufructuary mortgage in favour of defendants 1 to 4. This was in 1924. The appellant said that he came in possession, of the lands on surrender by the pro forma defendants. The pro forma defendants had, however, transferred the lands by means of a usufructuary mortgage in favour of defendants 1 to 4. This was in 1924. On the foot of the mortgage an action was brought, which was numbered Suit No. 150 of 1943. Defendants 1 to 4 obtained a decree, and the decree was put in execution in Case No. 77 of 1345. The land was sold in execution of the decree for a sum of Rs. 1000.00 and purchased by the decree-holders on 19-11-1945. The case of the appellant was that the Jalsasan service tenure of the pro forma defendants was not transferable, and the appellant was not bound by the mortgage decree or the proceedings taken in execution of that decree. On these allegations the appellant prayed for a declaration that the grant made in favour of the ancestor of the pro forma defendants was the grant of a service tenure, not transferable by the grantee and resumable by the grantor on the failure to perform the service, namely, repairs of Sonamunda Ahar. The appellant further prayed for an adjudication that the service tenure had come to an end by virtue of the surrender made by the grantee on 12-2-1945, and that tne decree passed in the mortgage action and the proceedings in execution thereof were not binding on him. The appellant asked for confirmation of possession or, in the alternative, recovery of possession. 2. The suit was really contested by defendants 1 to 4 who are the principal respondents before me. Their case was that the grant was not in the nature of a non-transferable, resumable service tenure, burdened with the condition of repairing Sonamun-da Ahar; on the contrary, the grant was an absolute grant of a rent-free tenure in perpetuity in which the tenant has an unrestricted right of transfer. It was alleged the Sonamunda Ahar was not excavated by the appellants ancestor; rather it was excavated by the tenant and the grant was made to compensate him for the expenditure incurred in constructing the ahar. The deed of surrender was alleged to be collusive, invalid, inoperative and hit by the doctrine of lis pendens. It was alleged the Sonamunda Ahar was not excavated by the appellants ancestor; rather it was excavated by the tenant and the grant was made to compensate him for the expenditure incurred in constructing the ahar. The deed of surrender was alleged to be collusive, invalid, inoperative and hit by the doctrine of lis pendens. It was stated that the entry in the record-of-rights With regard to the khewats 5/1, 5/2 & 5/3 were correct entries; the decree in the mortgage action was a valid decree and the proceedings taken in execution were valid proceedings binding on the pro forma defendants and the appellant. 3. Serveral issues were framed by the learned Munsif of Giridih who dealt with the suit in the first instance. It is unnecessary to refer to those issues. In substance, the learned Munsif found (1) that the Jalsasan lands which had been granted to Pran Mahto, of which the lands in suit are a part were non-resumable and transferable; (2) the grant was not-subject to any condition of service like the repair of Sonamunda Ahar; rather Sonamunda Ahar was constructed by the tenant himself; (3) the deed of surrender was collusive and Inoperative; it was executed in order to deprive the contesting defendants from the fruits of the mortgage decree; and (4) the suit was barred by the time inasmuch as the rehan in favour of the contesting defendants was executed more than twelve years ago and the appellant had failed to prove possession within twelve years of the suit. Before the learned Subordinate Judge who heard the appeal, the points urged on behalf of the appellant were two in number, namely, (1) the Jalsasan grant was in the nature of a service tenure, resumable on the non-fulfilment of the condition of service, & non-transferable in character and (2) that the appellant acquired a good title to the land by virtue of the deed of surrender dated 12-2-1945. The learned Subordinate Judge affirmed the finding of the learned Munsif that the grant was not in the nature of a service grant, subject to the condition of keeping Sonamunda Ahar in repair; he also affirmed the finding of the learned Munsif that the grant was a grant of rent-free tenure in perpetuity in which the tenant had an unrestricted right of transfer. As to the deed of surrender the learned Subordinate Judge again affirmed the findings that it was collusive and inoperative. He further held, differing from the learned Munsif, that the surrender was hit by the doctrine of lis pendens. On these findings the learned Subordinate Judge dismissed the appeal. 4. Two points have been urged before me on behalf of the appellant. Firstly, it is contended that on a proper construction of the Sanad (Ext. 2) made "by Thakur Brij Mohan Singh, read with the patta executed by Thakur Darip Singh (Ext. 2/a), the grant constituted a service tenure subject to the burden of keeping Sonamunda Ahar in repairs; therefore it was non-transferable, and resumable oa failure of the tenant to keep the ahar in repairs. Secondly, it is submitted that the grant of about 4 bighas of land for purposes of cultivation created a holding in favour of the grantee, and not a tenure, within the meaning of the relevant provisions of the Chota Nagpur Tenancy Act; such a holding was not transferable under the provisions of Sec. 46 of the said Act. 5. I take up the points one after the other. As was observed by their Lordships of the Judicial Committee in --A. J. Forbes V/s. Meer Mahomed Tuquee, 13 Moo Ind App 438 at p. 464 (PC) (A), the right to resume must depend in a great measure upon the nature of the particular tenure & the terms of the particular grant. Where there is a grant in writing and it is produced, the nature of the tenure will depend on the terms of the grant. Fortunately in the case before us, we have the original Sanad made by Thakur Brij Mohan Singh on 3-2-1825. This Sanad is Exhibit 2. It recites : "I am Thakur Shri Brij Mohan Singh proprietor of Gadi Bharkatta, pargana Kharagdiha, district Ramgarh. Jalsasan (right) in 4 bighas of paddy land in the bed of ahar in Kita Bhatudih and two bighas as Mahatwar, total 6 bighas of paddy land (faint and illegible). You should cultivate the same according to your sweet will and apropriate the produce of the said mahal. You should appropriate (illegible) with your children up to one or two generations. You should cultivate the same according to your sweet will and apropriate the produce of the said mahal. You should appropriate (illegible) with your children up to one or two generations. I have also therefore executed the sanad after making (unintelligible) so that it may be of use in future." It is clear from the terms of the Sanad that no condition of any service is laid down so far as the 4 bighas of paddy land in the bed of the Ahar are concerned. The Sanad says that the grantee shall cultivate the lands according to his sweet will and appropriate the produce of the lands. It is impossible to infer the creation of any service tenure from the terms of the Sanad. It is unnecessary in this case to go into a classification of service tenure such as was made in --Padamlochan V/s. Budhram, A. I. R. 1949 Pat 85 (B), because the Sanad does not create any service tenure at all. Learned Counsel for the appellant submitted, however, that the Sanad (Ext. 2) should be read with, and construed in the light of, the patta made by Thakur Darip Singh in favour of Hardeo Mahto (Ext. 2/a). The learned Munsif has rightly pointed out that the appellant has failed to establish that the lands in suit are in any way covered by the patta (Ext. 2/a). The re-cord-of-rights in khewat No. 5/1 refers to the Sanad of Thakur Brij Mohan Singh, dated the 30th of Magh, 1231 Fasli; it makes no reference to the patta given by Thakur Darip Singh. Fran Mahto was admittedly the son of Hardeo Mahto, the latter being the thikadar of village Bhatudih. There was some argument before the learned Subordinate Judge that by reason of the use of the word waguzasht, Ex. 2 referred back to the earlier document Ext. 2 (a). It appears that Ext 2 was badly torn and illegible at places. Assuming that it is permissible to construe Exhibit 2 with reference to the statements made in the earlier document. Ext. 2 (a), I do not think that the case of the appellant of a service tenure is made out. The patta (Ext. 2/a) recites in the first paragraph that Hardeo Mahto, thikadar of village Bhatudih, took a lease of the village at an annual Jama of Rs. 15/8/- for a term of seven years, 1221 to 1227 Fasli. Ext. 2 (a), I do not think that the case of the appellant of a service tenure is made out. The patta (Ext. 2/a) recites in the first paragraph that Hardeo Mahto, thikadar of village Bhatudih, took a lease of the village at an annual Jama of Rs. 15/8/- for a term of seven years, 1221 to 1227 Fasli. The patta then recites that the thikadar should cultivate all the jot lands of the village, e. g. paddy lands, etc. according to his sweet will and pay rent to the Sarkar. The second paragraph says that the thikadar should make customary payments on the occasion of festivals etc. It then recites : "I granted Jalsasan right in two bighas of paddy land in the bed of the ahar to the said Mahto. He shall appropriate it along with his children and keep the said land and ahar intact." Learned Counsel for the appellant has relied on the expression "keep the said land and ahar intact" as implying a condition of service, namely, of keeping Sonamunda Ahar in repairs. I am unable to accept the contention of learned Counsel for the appellant that the statement in Ext. 2 (a) to the effect that the grantee shall appropriate the produce of the lands and keep the lands and the ahar intact implies any necessary condition of service. It is appropriate to quote, at this stage, an extract from the final report on the Survey and Settlement operations in the district of Hazaribagh by Mr. J. D. Sifton. The extract I am quoting relates to Jalsasan grants and will be found at p. 80 of the report. " Jalsasan.-- A tenant who incurs a considerable expenditure in constructing a bandh is rewarded with a Jalsasan tenancy. He is given a certain area of the best lands which are irrigated by the bandh and is allowed to hold them rent-free in perpetuity. The terms of an old Jalsasan patta run : -- Whereas you have have constructed an ahar at great expense ..... this grant of land adjoining the ahar is made to you rent-free in perpetuity. Such lands are customarily regarded not as a holding but as a kind of lakhiraj tenure in which the holder has unrestricted rights of transfer. The terms of an old Jalsasan patta run : -- Whereas you have have constructed an ahar at great expense ..... this grant of land adjoining the ahar is made to you rent-free in perpetuity. Such lands are customarily regarded not as a holding but as a kind of lakhiraj tenure in which the holder has unrestricted rights of transfer. Jalsasan grants are not generally given to the raiyat who constructs a small ahar, but are given to wealthy agriculturists constructing big bandhs which are of benefit to a large area and represent a very substantial improvement in the village containing them. Some landlords contended that Jalsasan tenancies are service tenancies granted for the upkeep of a bandh. The contention is quite unfounded. These tenancies are not numerous in the district." The fact that 2 bighas of paddy land in the bed of the ahar were granted makes the grant more in consonance with what Mr. Sifton had said about such grants in the district of Hazaribagh. The finding of the Courts below is that Sonamunda Ahar was constructed by the thikadar. The mere statement in Ext. 2 (a) that the land and the ahar Should be kept intact does not, in the circumstances, create a non-transferable, resumable service tenure of the kind alleged by the appellant. 6. The entry in the record-of-rights showed the tenancy as a rent-free, non-resumable tenancy, and in the remarks column it was noted that the grant was made on the basis of the Sanad by Thakur Brij Mohan Singh in the name of Pran Mahto. As was pointed out by their Lordships of the Judicial Committee in -- Kamakhya Narain Singh V/s. Abhi-man Singh, AIR 1934 PC 182 (C), the presumption arising from the entry in the survey khewat could be rebutted, and the onus for rebutting the presumption lay on the appellant. In my opinion the appellant has failed to rebut the presumption. In the case before their Lordships, the question was whether the grant was a grant burdened with a particular service or whether the grant was conditional upon the service being performed; their Lordships held upon the terms of the kabuliat, that the performance of a particular service was a condition of the grant. In the case before me no condition of service is at all mentioned in the grant (Ext. In the case before me no condition of service is at all mentioned in the grant (Ext. 2) which created the tenure; Ext 2 (a) also does not impose any condition of service when it states that the grantee shall appropriace tne produce of the lands in tne bed of the ahar and keep theland and the ahar intact. 7. As to the point that the grantee was a raiyat in respect of tne lands and not a tenure-holder, learned Counsel for the appellant has referred me to the provisions of the Cnota Nagpur Landlord and Tenant Procedure Act (Act 1 on 1879). This was one of the earliest Acts to amend tne procedure in suits between landlords and tenants in Chota Nagpur. Sec. 6 of the Act states that every raiyat who has cultivated or held land for a period of twelve years has a right of occupancy in the land so cultivated or held by him, etc; but the rule does not apply to the classes of lands locally known as majhahas, man or saika, etc. The amending Act of 1903 (Bengal Act 5 of 1903) introduced for the first time definition of the expressions raiyat1 and tenure-holder in Chota Nagpur. According to the definition, a raiyat means primarily a person who has acquired a right to hold land for the purpose of cultivating it by himself, or by members of his family, or by hired servants, etc., a tenure-holder means primarily a person who has acquired from the zamindar, or from another tenure-holder, a right to hold land for the purpose of collecting rents or bringing it under cultivation by establishing tenants on it; it also includes the successors-in-interest of persons who had acquired such a right, and the holders of tenures entered in the register prepared under Sec. 5, Chota Nagpur Tenures Act, 1869, as confirmed under Sec.25 of that Act. There is an important explanation to the definition of the expression "raiyat" and I quote the relevant portion from that explanation : "In determining whether a tenant is a tenure-holder or a raiyat, the. Court shall have regard to local custom and to the purpose for which the right of tenancy was originally acquired." The definitions given above were substantially incorporated in the Chota Nagpur Tenancy Act, 1908 (Bengal Act 6 of 1908). Court shall have regard to local custom and to the purpose for which the right of tenancy was originally acquired." The definitions given above were substantially incorporated in the Chota Nagpur Tenancy Act, 1908 (Bengal Act 6 of 1908). In the definition of "Korkar" as given in Sec.3 (xiii), Chota Nagpur Tenancy Act of 1908 it is stated that "Korkar" means land, by whatever name locally known, such as bahbala, khandwat, Jalsasan or ariat, etc. Mr. Reid, who was Settlement Officer of Chota Nagpur, commented as follows, in his annotation on the Chota Nagpur Tenancy Act, with regard to the expression "Korkar" : "This class of lands is known under different names in different districts. In Ranchi district they are generally described as Korkar, in Hazaribagh as Khandwat, and in Manbhum as Jalsasan or ariat." It is obvious that the mere use of the expression "Jalsasan" does not necessarily indicate that the lands are raiyati lands. 8 The point which learned Counsel for the appellant urges is that 4 bighas paddy land were granted by the Sanad of Brij Mohan Singh for purposes of cultivation by the grantee; therefore the lands are raiyati lands, and under Section 46, Chota Nagpur Tenancy Act they are not transferable. This point does not appear to have been raised in the form in which it has been raised now at any earlier stage. Moreover, the argument fails to take note of the explanation to the definition of the expression "raiyat" which I have quoted above. It is clearly stated there that in determining whether a tenant is a tenure-holder or a raiyat the Court shall have regard to local custom and to the purpose lor which the right of tenancy was originally acquired. In the case before me the tenancy was created in 1825, more than 125 years ago, long before the enactment of the relevant tenancy law for Chota Nagpur. In Mr. Siftons report, an extract from which I have already quoted in this judgment, it was statea clearly that jalsasan lands were customarily regarded not as a holding but as a kind of lakhiraj tenure in which the holder had unrestricted rights of transfer. In para. 187 at p. 72 of the report it was stated that the tenancy of a mahto was called mahtoai. The Sanad (Ext. In para. 187 at p. 72 of the report it was stated that the tenancy of a mahto was called mahtoai. The Sanad (Ext. 2) shows that 2 bighas were given as mahtoai lands and 4 bighas as jalsasan lands. The terms of the Eanad (Ext. 2), as I have already pointed out, are in conformity with what Mr. Sifton noted with regard to such lands in his final report on the Survey anc. Settlement operations in the district of Hazaribagh. Even in the plaint, para. 4, the appellant characterised the tenancy as a tenure. In para. 6 of the written statement the principal respondents characterised the grant as a grant of rent-free tenure. It is, I think, too late in the day for the appellant to contend that the lands were raiyati lands. In the survey record-of-rights also the lands were recorded as a tenure. The appellant has failed to show that the entry was incorrect. 9. In my opinion, the Courts below correctly found that the jalsasan lands granted to Pran Mahto by Brij Mohan Singh in 1825 constituted a rent-free, non-resumable tenure granted in perpetuity in which the grantee had an unrestricted right of transfer. The appellants contention to the contrary is not correct. 10. I am further of the opinion that in any view of the matter the suit brought by the appellant was barred by time en the principle laid down in -- Gobinda Nath V/s. Surja Kanta, 26 Cal 460 (D). I need refer to one other decision on which learned Counsel for the appellant has relied, namely, the decision in -- Jhagru Mian V/s. Ragaunath Singh, AIR 1329 Pat 630 (E). That decision related to jalsasan lands in the district of Manbhum, and I have already pointed out that in the district of Manbhum jalsasan lands were often raiyoti lands. That decision is not, in my opinion, applicable to the facts ox the present case. 11. My conclusion, therefore, is that both the contentions urged on behalf of the appellant are without substance. The appeal fails and 13 accordingly dismissed, with costs, in favour of the contesting respondents.