JUDGMENT : Tulzapurkar J. - The question raised in this appeal relates to the applicability of the second proviso to section 5(2) of the Bombay Service Inams (Useful to Community) Abolition Act, 1953. 2. Respondent No. 2 claimed the regrant in respect of Inam lands which had been resumed under section 5 (1) of the Act by the State of Maharashtra averring that he and his father Bhawani were the `holders' of the lands in question since 1911 right upto the time when Inams in question came to be abolished under the Act rendering service to the village community of filling water troughs for the village cattle. The Mamlatdar who held an inquiry came to the conclusion that respondent No. 2 was not 'Halkari', i.e., holder of Hal Inam Lands within the definition of 'holder' as given in section 2(1)(d) of the Act. The respondent No. 2 carried the matter in appeal to the Collector who by hid order dated October 11, 1962 reversed the decision of the Mamlatdar and held that respondent No. 2 was entitled to the regrant on the basis that he and his father were in lawful possession of the Inam lands for the last 50 years and that they were also rendering service required of them to the village community and this evidence was enough to hold that respondent No. 2 was lawfully holding the Inam land within the meaning of section 2(d). On appeal by the Village Panchayat the Commissioner reversed the Collector's decision and the Commissioner's order dated September 11, 1964 was confirmed by the Government on June 11, 1965. Respondent No. 2 filed a writ petition before the High Court of Bombay challenging the Commissioner's decision as well as the Government's decision and the High Court set aside both the decisions and restored that of the Collector and directed that on the facts of the instant case respondent No. 2 was a lawful holder of the lands in dispute and was entitled to the regrant under section 5(2) of the Act. It is this decision of the High Court that has been challenged before us by the Village Panchayat, Nhavi. 3. It is this decision of the High Court that has been challenged before us by the Village Panchayat, Nhavi. 3. Counsel for the Village Panchayat has contended that the High Court has wrongly thrown the burden of proof on the Revenue while under the second proviso to section 5 (2) of the Act the burden lay on respondent No. 2 to prove that he was in possession of the lands as a result of some alienation of land in his favour or in the favour of his predecessor which had been made with the sanction of the competent authority, especially when it was admitted by respondent No. 2 that he was not related to the original grantee and the High Court ought to have held that the burden had not been discharged by respondent No. 2. 4. It was not disputed before us that the original grantee was one Gana Dhira Chaudhari to whom lands in question were granted in that Inam on May 29, 1868. The relevant Entry No. 744 in Land Alienation Registrar, Taluka Yawal, East Khandesh has been produced on record. At the inquiry before the Mamlatdar all that was pointed out by respondent No. 2 was that his father's name had been entered in the Record of Rights as the holder of these inam lands since 1911 and his name since 1954. It appears that respondent No. 2 gave an admission to the effect that he was not related to the original Sanad holder and therefore it became necessary for him to show how the lands came in possession of his forefathers and that the transfer, if any, was with the sanction of the competent authority. The contention of the counsel for the appellant has been that the matter was governed by second proviso to section 5(2) which runs thus: "Provided further that where a service Inam consisting of land is inalienable and is in the possession of a person other than the descendant of the original grantee, then for the purposes of recreant of land, the person in possession of the land shall produce satisfactory documentary evidence to show that the alienation of the land in his favour or in favour of his predecessor in title was made with the sanction of the competent authority." 5. In order to come to the conclusion that the matter was governed by this proviso the Commissioner pointed out that in the relevant entry in the Alienation Register the original Sanad was stated to have been granted in Form No. XII-A, that the Form No. XII-A must have been wrongly mentioned as it was ascertained from the Settlement Commissioner and the Director of Land Records that Sanad in respect of Class VI Inams was usually granted in Form No. XII and that there was no form bearing No. XII-A prescribed by the Government for the grant of a Sanad in respect of class VI Inams and that the service Inam in this case must have been inalienable because Form No. XII contained a clause which prohibited transfers. The clause which normally found a place in Form No. XII ran thus : "It is hereby declared that the said land shall be continued so long as the village Community may require the services, as the service emolument of appertaining to the office of Hal on the following condition that is to say that the holder thereof shall perform usual service to the community and shall continue faithful subjects of the British Government. As the Watan is held for the performance of service, it cannot be transferred and in consequence no Nazrana will be levied." 6. Both the Commissioner as well as the State Government in deciding the matter against respondent No. 2 assumed that Inam lands in, the instant, case must have been granted to the original grantee in Form No. XII and the Sanad must have contained the clause against transfer of the lands in question, and it was on the basis of this assumption that it was held that under the second proviso respondent. No. 2 ought to have produced material showing that the lands had been transferred to his fore-fathers and that too with the sanction of the competent authority and in the absence of evidence in that behalf it could not be held that respondent No. 2 or his ancestor were `holders' of these lands within the meaning of section 2(b). 7. No. 2 ought to have produced material showing that the lands had been transferred to his fore-fathers and that too with the sanction of the competent authority and in the absence of evidence in that behalf it could not be held that respondent No. 2 or his ancestor were `holders' of these lands within the meaning of section 2(b). 7. It is not possible to sustain this reasoning for, as the High Court has pointed out the proviso on which reliance was placed and which is being pressed into service by counsel for the appellant before us, can apply only if it is established that the service Inam consisted of lands which were clearly inalienable. Since the original grant or Sanad is not forth-coming it is not possible to hold that the condition of inalienability at tabled to the Inam lands in question. In the absence of the Sanad, it was an error on the part of the Commissioner to assume, that the Sanad issued to the grantee was in Form No. XII and further that it imposed the condition regarding inalienability. The second proviso which was inserted in the Act by way of an amendment and which introduced a rule of evidence cannot be invoked by making an assumption in regard to the existence of the condition on which its applicability depends and if the assumption was wrongly made the proviso was clearly not attracted. Moreover, the High Court has pointed out that since 1911 the lands had been entered in the name of respondent No. 2's father and there after entered in the name of respondent No. 2 in 1954 and they continue in their names for 50 years right upto the relevant date of the abolition of Inams without objection being raised by anyone and they have been rendering the service required of them. It can be presumed that the mutation to the name of the father of respondent No. 2 in 1911 and then to the name of respondent No. 2 must have been made after due inquiry and the long enjoyment of the lands together with rendering of service for over the years clearly showed that they were lawful holders of the lands in question and respondent No. 2 was rightly held by the Collector to be entitled to the regrant under section 5(2) of the Act. We therefore hold that second proviso to section 5(2) was not attracted to the facts of the case and the High Court was right in restoring the Collector's Order. The appeal is therefore dismissed. There will be no order as to costs. Appeal Dismissed