B. N. MAITRA, J. ( 1 ) THE plaintiff, Sri Rajballavi Mata Thakurani, represented by Shebait filed the present suit. The plaintiff's allegation is that the property in question appertaining to the plot No. 3324 having an area of. 39 decimals together with other lands was given to one Prosad Pandit, father of the defendant No. 4, in lieu of wages for supplying fuel to the deity. Prosad had no interest of tenancy right in that land. In the R. S. Khatian the land has been erroneously recorded as Chakran Dakhalkar land of Prosad Pandit. On the footing of such erroneous entry, the rent of that property has been assessed under S. 41 of the West Bengal Estates Acquisition Act. On the basis of such wrong entry, the defendants Nos. 1 and 2 obtained some collusive kobalas from Prosad Pandit and ultimately dispossessed the plaintiff from the disputed land. The plaintiff submitted a 'b' Form and retained it. The suit is for recovery of khas possession of the disputed land on declaration of the plaintiff's title to the disputed land. A notice under S. 80 of the Civil Procedure Code was served on the State-defendant No. 2. ( 2 ) THE State Government has taken the defence that the notice under S. 80 of the Code of Civil Procedure was not valid in law. Defendant No. 2 has stated that Prosad Pandit had a tenancy right in that property because the property is considered to be a Chakran, it was burdened with service. The plaintiff-deity had only an intermediary interest which vested in the State. Defendant No. 1 purchased Prosad Pandit's interest and subsequently, sold the same to defendant No. 2, who is in possession thereof. ( 3 ) THE learned Munsif rejected the plaintiff's contention and dismissed the suit. The plaintiff preferred an appeal and was unsuccessful. Hence this appeal. ( 4 ) MR. Das Gupta has contended that the entry in the C. S. Khatian, Ext. 1, that it was a Chakran Dakhalkar of Prosad Pandit is incorrect. ( 3 ) THE learned Munsif rejected the plaintiff's contention and dismissed the suit. The plaintiff preferred an appeal and was unsuccessful. Hence this appeal. ( 4 ) MR. Das Gupta has contended that the entry in the C. S. Khatian, Ext. 1, that it was a Chakran Dakhalkar of Prosad Pandit is incorrect. According to paragraph 26a of Chapter IX of the Technical Rules and Instruction of the Settlement Department, the holder of Chakran land will be recorded as having the status of Chakran madhyasatwa or Chakran raiyati, as the case may be, with a further note that the provisions of S. 181 of the Bengal Tenancy Act applies to the tenancy and the rent column will be left blank. He has referred to the well-known case of Tara Prosad v. Ganesh Chandra in 70 Calwn 652. It has been stated that the learned appellate Court misapplied that decision of Tara Prosad's case. According to that decision, if chakran is a servant, the possession of the servant is the possession of the plaintiff's master. The plaintiff submitted a return in the 'b' Form and retained the land. The State Government has stated that, in fact, such form was submitted by the plaintiff. But since the property vested in the State, the plaintiff has lost title thereto. The appellate court made out a third case for the defendant that the supply of fuel was, in fact, rent in kind within the meaning of the provisions of S. 3 (13) of the Bengal Tenancy Act and 2 (o) of the West Bengal Estates Acquisition Act. The defence was that at all events the chakran was burdened with service and it was not grant of an office to be remunerated by the use of land. The courts below made a mistake in stating that the suit was bad because the notice under S. 80 of the Code of Civil Procedure was not a valid one. Reference has been made to the well-known Bench case of Kishan v. Union of India in 64 CWN 272. The Full Bench case of Chandrakant Gobind v. State of Maharashtra in AIR 1970 Bom. 301 has also been cited. It has been contended that the service of the notice under S. 80 of the Code has not been denied by the State defendant No. 2. The Full Bench case of Chandrakant Gobind v. State of Maharashtra in AIR 1970 Bom. 301 has also been cited. It has been contended that the service of the notice under S. 80 of the Code has not been denied by the State defendant No. 2. In the written statement, the only denial is that such notice is not valid. Since that notice has been produced by the State to show that it was not valid in law, there will be an adverse inference against the State Government. ( 5 ) LET the question of law covered by the provisions of S. 80 of the Code of Civil Procedure be discussed first. In the Full Bench case of Chandrakant v. State of Maharashtra (supra), the Bombay High Court relied on the case of State of Madras v. C. P. Agencies in AIR 1960 SC 1309 and Maniluxmi v. Hindusthan Insurance Co-operative Societies Ltd. in AIR 1962 Cal. 625 . It has been stated that S. 80 of the Code applies only when relief is asked for personally against the Government or public officer. Where relief is not asked for personally against the Government or Registrar, no notice under that section is necessary. In that aforesaid Bench case of Kishan v. Union of India, K. C. Das Gupta, J, has stated that where the plaintiff states that a notice under S. 80 of the Code has been served and in the written statement, there is no denial thereof and on the other hand, the defence is that a notice is not valid. But the notice has not been produced by the defendant. There will be an adverse inference against the defendant that the notice was withheld and so, the Court can arrive at a decision that the notice was proper and valid. Since the State Government did not produce that notice there will be an adverse inference against the State-defendant No. 2. It is, therefore, held that the notice under S. 80 of the Code of Civil Procedure is valid in law. ( 6 ) IN the case of Forbes v. Meer Mohammad in 13 MIA 438 at page 464, it has been stated that a distinction exists between the grant of an estate burdened with a certain service and that of an office, the performance of whose duties is remunerated by the use of land. ( 6 ) IN the case of Forbes v. Meer Mohammad in 13 MIA 438 at page 464, it has been stated that a distinction exists between the grant of an estate burdened with a certain service and that of an office, the performance of whose duties is remunerated by the use of land. In the former case, the zeminder is not ordinarily entitled to resume, even if the service is not required, if the grantee is willing and able to perform the services, while in the other case, he may do so, when the office is terminated. ( 7 ) IN the case of L. B. Sardesai v. R. Biswantrao in 35 Calwn 721 POC at page 723 Lord Atkin has stated that in determining whether the land, which is the subject matter of a service grant, is resumable, the distinction to be borne in mind is between the grant of an office to be remunerated by the use of land and the service of grant of land burdened with service. Their Lordships were following the principles formulated by the Judicial Committee in the aforesaid case of Forbes v. Meer Mohammad (supra ). It has been stated that in the former case, the land will prima facie be resumable, while in the latter case, prima facie it will not. The same view has been taken in the case of State of Orissa v. Ram Chandra in AIR 1964 SC 685 . In the Privy Council case, there was a document which showed that the grant was of land not resumable but intended to be heritable and transferable and permanent. So, the questions arise whether the entry in the R. S. khatian, Ext 1, is correct and if there was a grant of an office to be remunerated by the use of land or there was grant of land burdened with service. ( 8 ) THE entry in the R. S. khatian, Ext. 1, is self-contradictory because the disputed land appertains to the plot No. 3324 measuring. 39 cents. It is a 'sali' land, i. e. arable land. The evidence on the record shows that the land was ploughed and it is a paddy land. The R. S. khatian further shows that the provisions of S. 181 of the Bengal Tenancy Act are applicable. 39 cents. It is a 'sali' land, i. e. arable land. The evidence on the record shows that the land was ploughed and it is a paddy land. The R. S. khatian further shows that the provisions of S. 181 of the Bengal Tenancy Act are applicable. That section shows that nothing in the Bengal Tenancy Act shall affect any incident of a ghatwali or other service-tenure, or, in particular shall confer a right to transfer or bequeath a service-tenure which, before the passing of the Act, was not capable of being transferred or bequeathed. The learned appellate Court has stated that such entry regarding the applicability of S. 181 of the B. T. Act is wrong because after the passing of the West Bengal Estate Acquisition Act, the provisions of the Bengal Tenancy Act stood repealed. This is clearly erroneous because the Bengal Tenancy Act was repealed on the 1st November, 1965, and not immediately after the West Bengal Act I of 1954 came into force. It seems that it has been rightly contended that the words "chakran Dakhalkar" in the R. S. khatian mean the Prosad Pandit was a person in occupation of the land. ( 9 ) ACCORDING to the decision of Tara Prosad v. Ganesh Chandra's case (supra), the first incident of a service tenure appears to be inalienability and impartibility. The second incident is that it is immune from sale in execution of a decree, but is liable to forfeiture. The next incident is that no right of occupancy can be acquired. The 4th incident is related to the question of the right of a grantor to resume a service grant, vide the page 657 of the Report. ( 10 ) IT can be seen from page 669 of the Report that the Court will consider the question if the chakran is a servant. If the court holds that actually he is a servant, then his possession will be the possession of the master. ( 10 ) IT can be seen from page 669 of the Report that the Court will consider the question if the chakran is a servant. If the court holds that actually he is a servant, then his possession will be the possession of the master. ( 11 ) IN that case, an argument was advanced that according to the provisions of S. 41 of the West Bengal Estates Acquisition Act in preparing or revising any record of rights, the Revenue Officer must fix in respect of any land hold free of rent by a person who hold such a land free of rent in consideration of some service to be rendered, a rent determined on the basis of rent paid by the raiyats or non-agricultural tenants for lands of similar description and with similar advantages in the vicinity. Hence, the chakran became a tenant of the Estate after the vesting in the State of West Bengal. It has been stated by P. B. Mookerjee, J, that a chakran can become a tenant of the State of West Bengal if the land is not retained by the intermediary or the owner. In such cases, S 41 of the Act comes into the picture. But that Section does not say that even where the land is retained by intermediary or the owner, the Chakran may continue to be a tenant of the estate. ( 12 ) THE evidence on the record shows that Prosad Pandit was an employee of the plaintiff-deity. His duty was to supply fuel for the preparation of the deity's bhog. It is, thus, held that in such circumstances, such supply of fuel by Prosad to the plaintiff's deity was in the nature of personal service to the deity and it was not a tenancy right in his favour and the land was not burdened with service and the entry in the R. S. Khatian is not correct. The decision taken by the learned appellate court is incorrect. He made out a third case for the party by saying that the supply of fuel was delivered as rent in kind within the meaning of S. 3 (13) of the B. T. Act and 2 (o) of the West Bengal Estate Acquisition Act. The decision taken by the learned appellate court is incorrect. He made out a third case for the party by saying that the supply of fuel was delivered as rent in kind within the meaning of S. 3 (13) of the B. T. Act and 2 (o) of the West Bengal Estate Acquisition Act. In the cases of Shewdhari v. Suraj Prosad reported in AIR 1954 SC 758 at page 760 and Venkappa v. Rangu in AIR 1977 SC 890 , it has been stated that the court cannot make out a new case not made out in the pleadings. ( 13 ) LET us see what are the facts of this case. Prosad made a sale to the Patras on the 2nd April, 1965. The Patras made a transfer to defendant No. 1 on the 5th July, 1965. This transfer was made before the Bengal Tenancy Act was repeated with effect from 1st November, 1965. The record of rights, Ext. 1, shows that the provisions of S. 181 of the B. T. Act are applicable. So, those transfers are invalid in law. After such sale, it can be stated that Prosad refused to perform such service. Consequently, if that was made, the plaintiff's deity was entitled to resume the property because it has already been seen that it is an agricultural property and there was grant of an office to be remunerated by service to be rendered by Prosad Pandit. ( 14 ) AS the plaintiff submitted a 'b' Form and retained the property it must be held that the plaintiff-deity has title to the disputed property and the defendant No. 1 and subsequently, the defendant No. 2 did not acquire any title by purchase made on 5th July, 1965. ( 15 ) THE appeal is allowed. The judgment and decree appealed against be hereby set aside. The suit is decreed. The plaintiff's title to the disputed land be herby declared. The plaintiff do recover khas possession of the property in question by evicting the defendants therefrom. The parties will bear their own costs throughout. Appeal allowed.