Oldfield, J.
1. This suit has been brought by the plaintiff to eject the appellant-defendant, Waris Ali, from one bigha of land in mauza Burhausi.
2. The plaintiff's case is that this is rent-paying land which had been granted to Nasiba by the plaintiff's father many years ago, free from payment of any rent, on condition that certain services as a mimic should be performed that these services continued to be performed till lately, when Nasiba discontinued them, and has sold the land to the appellant.
3. The plaintiff endeavoured to resume the land in the Revenue Court as a rent-free grant under Section 30 of the Rent Act but the application was disallowed on the ground that the Revenue Court had no jurisdiction, there being no rent-free grant as contemplated in the Act.
4. The defence was, that the land had been bestowed unconditionally on Nasiba, who enjoyed it as the proprietor.
5. The Court of First Instance found that the land had, up to 1264 fasli been recorded as paying cash rent, and in 1274 fasli it was recorded that the said rent was remitted in lieu of services rendered, and it found that the land had been held by Nasiba on these conditions; that there was no rent-free grant in the sense of Section 30 of the Rent Act, and no bar to entertaining this suit for ejectment, since the conditions of service had ceased, and Nasiba had wrongfully alienated the land.
6. Waris Ali appealed to the Judge, who has substantially come to the same conclusion as the first Court.
7. Waris Ali, defendant, has appealed on three grounds:
(i) That this suit is not cognizable by the Civil Court; (ii) that the proceedings in the Revenue Court operate to bar the claim, as the matter was finally decided there, and the question now raised is res judicata? (iii) that the finding as to the nature of the tenure is not supported by the evidence.
7. The last plea cannot be entertained, so far that we cannot in second Appeal interfere with the finding that the land was granted to, and held by Nasiba in lieu of services to be performed, which were rendered instead of a cash rent payment.
8. Whether or not this suit is cognizable by the Civil Court, depends on Whether it can be held to be a suit to resume a rent-free grant in the sense of Section 30 of Act XII of 1881, or has for its object to eject a tenant, and so deals with matters in which the Revenue Court has exclusive jurisdiction under Sections 93 and 95 of the Rent Act.
9. Now, it is found that this land was land for which rent used to h& paid in cash, and it was given to Nasiba on the condition that he rendered to the zamindar certain services in lieu of paying a cash rent for the land. Now rent in the Rent Act is defined to be 'whatever is paid, delivered, or rendered by a tenant on account of his holding, use, or occupation of land,' and it seems to me clear that Nasiba was a tenant who rendered certain services on account of his use of the land. It has been pressed on us that the terra 'rent' as used in the Rent Act cannot mean services rendered to the landlord for-the use of land, but is confined to that which is paid or delivered or rendered in cash or kind; because the provisions of the Act are only operative in respect of remedies in regard to rent of that character, and inoperative in respect of rent in the shape of services rendered. But the argument is not conclusive; for whether or not all the provisions of the Act can be brought into force only in respect of rent taken in one shape is no ground for assuming that the term 'rent' may not include something taken in another shape. Now the definition of 'rent' in Section 3 seems to me expressly intended to include services, or labour rendered for the use of land, and in point of fact the word 'rent' has always been so understood.
10. Blackstone defines it: 'The word rent, or render, reditus, signifies a compensation or return, it being in the nature of an acknowledgment given for the possession of some corporeal hereditament. It is defined to be a certain profit issuing yearly out of lands and tenements corporeal. It must be a profit, but there is no occasion for it to be, as it usually is, a sum of money for spurs, capons, horses, corn, or other matters, may be rendered by way of rent. It may also consist in services or manual operations, as to plough so many acres of ground, to attend the king or the lord to the wars, or the like, which services in the eye of the law are profits.'
11. I have no doubt the Legislature had this meaning of rent in view, and it seems clear from Section 8(c) of the Act that ' rent' was intended to include services rendered for the use or occupation of land.
12. Section 8(c) contemplates the case of a tenant holding land in lieu of wages, that is, holding it for services rendered, remunerated by the profits of the land instead of wages. But a tenancy implies the relation of landlord and tenant between the holder of the land and the receiver of the services, and as landlord is defined in the Act to be the 'person to whom a tenant is liable to pay rent,' it follows that in such a case the services rendered constitute rent under the Act.
13. I therefore hold that the tenure in this case is that of a tenant paying rent to the landlord.
14. But a further question would arise whether there has been such a grant as is contemplated by Section 30 of the Rent Act. That section refers to grants for holding land exempt from the payment of rent alluded to in Section 10, Regulation XIX of 1793.
15. Now it appears to me very clear that the grant in this case is not one of those to which the Regulation refers. The Regulation has reference to grants of land free from payment of revenue; but, assuming that it refers to grants free from payment of rent also, it contemplated grants of land not only free from payment of rent in cash or kind, but free from payment of anything in lieu thereof. This was pointed out by Norman, J., in a very important case decided by the Calcutta Court, where the whole question of these grants was exhaustively discussed--Mutty Lall Sen Gywal v. Deshkar Roy 9 W.R. 1.
16. Norman, J., remarked that what was contemplated was a grant of land to-hold in absolute proprietary right, not only free from payment of any rent in money, but without any dependence on, or duty to, the zamindar; and that when the grantor holds subject to the performance of any duty or conditions, the Regulations appear to treat him as a lease-holder; and he pointed out that Section 7, Regulation VIII of 1793, shows that persons holding land subject to performance of conditions stipulated for, are to be considered as leaseholder only. The same view was taken by this Court in Puran Mal v. Padma I.L.R. 2 All. 732. Section 30 of the Rent Act deals with such grants as are contemplated in Section 10, Regulation XIX of 1793, and we must see what they were, and I think the view expressed by Norman, J. and by Spankie, J., in the case of Puran Mal I.L.R. 2 All. 732, is correct, and that a tenure, such as the one we are now dealing with, where the land was land originally paying rent in cash, and where the cash rent was exchanged for rendition of services, is not 'a rent-free grant within the meaning of the Regulation, nor consequently of Section 30 of the Rent Act.'
17. There was therefore no rent-free grant at all in the sense contemplated by Section 30 of the Rent Act, and this cannot be held to be a suit to resume a rent free grant, in which matters the Revenue Court has exclusive jurisdiction. It is, in fact, a suit to eject the appellant as a trespasser, between whom and the plaintiff there is no relation whatever of landlord and tenant, and it does not concern itself with any dispute or matter such as are referred to in Section 93 or 8, 95 of the Rent Act as exclusively cognizable by the Revenue Court. From what has already been stated, it is scarcely necessary to add that the plea of res judicata, with reference to anything done in the Revenue Court, has no force whatever. I would dismiss the appeal with costs.
Mahmood, J.
18. The only question of significance raised in this appeal relates to the jurisdiction of the Civil Court in a suit of this nature, and on that question depends also the determination of the plea of res judicata which has been raised in this case. In deciding the question some difficulty, no doubt, is created by two rulings of this Court, one being Puran Mal v. Padma I.L.R. 2 All. 732 and the other a ruling of my own in Tika Ram v. Khuda Yar Khan I.L.R. 7 All. 191. In the former of these cases the plaintiffs, as zamindars, sued for certain land in their village, on the allegation that it had been assigned to a predecessor of the defendant to hold so long as he and his successors continued to perform the duties of balahar or village watchman, and that the defendant, having ceased to perform those duties, was holding as a trespasser, and as such was liable to eviction. The defendant's plea was that he and his predecessors, having held the land rent-free for two hundred years, had acquired a proprietary title which could not be defeated by the plaintiff. Spankie, J., who delivered the judgment of the Court in that case, held that such assignment of land was not a 'grant' within the meaning of Regulation XIX of 1793; that the operation of Sections 30 and 95(c) of the Rent Act (XVIII of 1873) and Sections 79 and 241 (h) of the Revenue Act (XIX of 1873), so far as they oust the jurisdiction of the Civil Court, was limited to grants contemplated by that Regulation; and that therefore the dispute raised in that suit was cognizable by the Civil Court. In the course of his judgment the learned Judge observed: 'What the plaintiff desires in this case is full possession of a plot of land which, he says, has hitherto been held without payment of rent by defendant, the village 'balahar' or watchman. He was allowed to occupy the land for his support, and, in point of act, whatever he derived from the land constituted his wages. But there was no permanent grant of the land to him or his predecessors. He would continue to occupy it as long as be continued to give his services as watchman.' In the other case, the facts before me were not altogether dissimilar to the case just referred to, bat it had been found that 'the defendant and their ancestors have been in possession of this land for more than fifty or sixty years,' and that they 'are in possession as muafi-holders, and have never paid any rent.' The duties for which the land was originally assigned were those of kherapati of the village, such duties being the performance of certain annual religious ceremonies, and the ground upon which the eviction of the defendant was claimed was that the defendant, having wrongly planted a grove on the land, had been dismissed by the plaintiff zamindar from the office of kherapati. Upon this state of things I held that the grant, whatever its origin may have been, was admittedly a rent-free grant, and being proved to be older than sixty years, during which time the defendants his ancestors never paid any rent, as was found by the Courts, the nature of the dispute there was beyond the jurisdiction of the Civil Court, because it could form the subject of an application to resume a rent-free grant within the meaning of Section 30 of the Rent Act (XII of 1881), and therefore the -provisions of Clause (c) of Section 95 of that Act, and for similar reasons of Clause (h) of Section 241 of the Land Revenue Act, were applicable. Whether there is any distinction in principle, for the purposes of this question of jurisdiction, between the temporal functions of a balahar or village watchman and those of a kherapati or the village priest, is open to doubt, though I may observe that in the case of Raghubardyal v. Oyadin cited at page 16 of Mr. Teyen's edition of the Bent Act the Sudder Board of Revenue held that religious grants which involve more or less the performance of some religious rite or ceremony, do not fall under the head of 'khidmati' grants, and the provisions of Section 30 of the Rent Act are therefore applicable to them (Board's Pile No. 802 of 1881). I, however, think that the learned Judge of the Lower Appellate Court was right in thinking that the two rulings of this Court already referred to are not fully reconcilable in their ratio decidendi, and I may add, as supporting the view of Spankie, J., that the Sudder Board of Revenue in Qanga Bhar v. Baldeo N.W.P. Legal Remembrancer Rrevenue and Rent Series 118 held that an assignment of land, on condition that certain services are performed by the assignee (haqqul-khidmat grants), is not a rent-free grant within the meaning of Section 30 of the Rent Act, since the service is equivalent to rent.
19. It might perhaps have been possible, with reference to the rulings above mentioned, to distinguish my ruling in Tika Ram v. Khuda Yar Khan I.L.R. 7 All. 191 by saying that the duties of a kherapati were of a spiritual nature, and could not therefore be regarded as rent within the meaning of the definition contained in Clause (2) of Section 3 of the Rent Act, or Clause (4) of Section 3 of the Land Revenue Act. But this was not the ratio decidendi upon which my ruling in that case proceeded, and, moreover, here the services for which the grant is alleged to have been made were those of a mimic or drollery, which it would not be easy to classify either under the head of spiritual or substantial temporal services. At any rate, the exigencies of the present case require me to decide whether such services are 'rent' within the meaning of Clause (2), Section 3 of the Rent Act, or Clause (4), Section 3 of the Land Revenue Act, the words employed in both the enactments in defining rent being identical. The words are: ''Rent' means whatever is to be paid, delivered, or rendered by a tenant on account of his holding, use or occupation of land.' It is contended that the word 'rendered' is used in this definition as applicable only to services, and that Clause (c) of the proviso to Section 8 of the Act, which lays down that no tenant shall acquire a right of occupancy ' in land held by him in lieu of wages,' supports this interpretation.
20. Having given the question the best consideration I can, I find myself forced to arrive at the conclusion that the services attributed to the grant in this case did not constitute 'rent' within the statutory definition. The whole argument in favour of the contention really rests upon the exact interpretation of the word 'render'--a word which, in the English language, possesses many meanings, and which in one sense would undoubtedly include or imply the rendering of service or labour. But the primary meaning of the word is 'to return, to pay back, to restore,' and among other meanings the word simply means 'to give on demand, to give, to assign, to surrender.' The last and most approved edition of Webster's Dictionary is my authority for these meanings, and I am inclined to adopt this interpretation in preference to limiting the word to services. I shall presently show that this is the only manner in which the definition of 'rent' in the interpretation clause can be rendered intelligible and consistent with the use of the word throughout the remaining provisions of these enactments. It is contended, with reference to Clause (c) of the proviso to Section 8 of the Bent Act, that a tenant holding land 'in lieu of wages 'renders service as' rent 'within the meaning of the definition. But I do not think such a conclusion necessarily follows. The word 'tenant' is not exhaustively defined in either of these enactments, and if the word is understood in its general sense, it does not, on the one hand, necessarily follow that every tenant pays rent, or delivers anything in lieu thereof; nor, on the other hand, does it necessarily follow that every service performed by such tenant for the zamindars constitute rent. Thus, a tenant who is in possession of land, 'in lieu of wages,' need not be liable to payment of any ' rent,' within the meaning of the Act.
21. I shall now show this is the only consistent interpretation required by that rule of construing statutes, which says that when words are specially defined in an enactment, they must throughout be interpreted in that same sense. The scope of the Rent Act includes among its most important provisions, as the preamble shows, rules 'relating to the recovery of rent,' and indeed this might perhaps be said to be the whole province of the enactment. Now, if I can show from the enactment itself that there is not a single provision in it which can possibly be construed as laying down a rule for the ' recovery of rent,' if services such as those in this case are understood as rent, I think I shall have shown that ' rendered ' must be understood as I have interpreted it, and that rent must not be understood to include such services.
22. The first provision, then, to which I would refer is Section 24 of the Rent Act, which confers a general right upon all tenants to claim a lease from the landlord, defining inter alia, matters as to the amount of ' annual rent payable,' 'the instalments in which, and the dates on which, such rent is to be paid.' These are the words of Clauses (b) and (c), and it is dear that neither of them can possibly apply to such services as in this case. Then comes Clause (e), which, in enumerating the contents of the lease, says--' If the rent is payable in kind, or is calculated on a valuation of the produce, the proportion of produce to be delivered, the mode of valuation, and the time, manner, and place of delivery,' In my opinion, it is impossible to hold that mimicry can be regarded either as rent 'payable in kind,' or covered by any other portion of this clause. And if this is so, then we have the necessary inconsistency in the Act that whilst the section confers the right upon 'every tenant,' a tenant who holds land in lieu of the performance of mimicry cannot claim the benefit of the law. Then comes Section 34, which lays down that ' when an arrear of rent remains due from any tenant, he shall be liable to pay interest on such arrear at one per cent, per mensem; and if the arrear remains due on the 30th day of June, to be ejected from the land in respect of which the arrear is due,' It is obvious that in this clause 'rent' cannot be understood to include services of mimicry. I could go through the whole Act and show that, in no part of it can such services be possibly understood to mean 'rent'. But I will go at once to the remedial part of the statute and refer to Section 56, which, after stating that the produce of all land in the occupation of a cultivator is to be deemed as hypothecated for rent, goes on to say that 'when an arrear pf rent is due from any cultivator, the person entitled to receive rent immediately, from him may, instead of suing for the arrear as hereinafter provided, recover the same by distress and sale of the produce of the land, in respect of which the arrear is due, under the rules contained in this, chapter.'; How is it possible to hold that this provision applies to rent of the nature which is said to constitute rent in this case? And if distress is not the mode of recovering such; rent, is there a single provision of the Act which provides a remedy for the landlord to recover such rent? There is, indeed, another provision to be found in Clause (a), Section 93, which relates to 'suits for arrears of rent, or, where rent is payable, in kind, for the money equivalent of rent, on account of land or on account of any rights of pasturage, forest rights, fisheries or the like.'. This clause in equally inapplicable to such services as mimicry, and I am wholly unaware of any provision in the Act which would enable the landlord to enforce the recovery of such rent. The matter therefore stands thus that a statute which in the preamble states its object to be to provide rules for the 'recovery of rent,' defines rent in such a broad manner as to include the performance of mimicry, and then defeats its own whole object by providing absolutely no rule for recovery of such rent. Sooner than accept this necessary consequence, I am prepared to say that the word 'render,' as it occurs in the definition of 'rent,' must not be so understood as to include such services. Similar reasons, mutatis mutandis, satisfy me that the word 'rent,' as used in the Land Revenue Act, must not be understood in any sense other than that which I have interpreted it in the Rent Act.
23. What I have already said is sufficient to show that upon the case as setup by the plaintiff himself, the grant in this case was free of 'rent,' in the sense in which that word must be understood both in the Rent Act and in the Land Revenue Apt. But I will go further and show how the definition of the word in those two enactments may be accepted in an intelligible sense without; involving the inconsistencies to which I have referred. The truth seems tome to be that the word 'rent,' which has found its way into the two enactments above referred to from the old Regulations of the East India Company, is used probably 'as the equivalent of the Hindustani words lagan or poth, which are well understood in the country as representing the compensation receivable by the landlord for letting the land to a kashtkar or cultivator. It is equally well known that such compensation, ever same the reign of the Emperor Akbar, when his Revenue Minister, Raja Todar Mal, introduced his system, payments of lagan were made in three ways. The first of these was batai or division of the produce in kind, of which the zamindar or where such rights, did not exist, the Government, took a certain proportion. When cash payments were introduced instead of batai, one method was to make an estimate or appraisement of the crops, and to take in cash what would represent the due proportion as the lagan. The third method was cash payments of fixed lagan agreed upon jay the kashtkar, and irrespective of the nature, quality or quantity of the produce. This last was perhaps the most recent outcome pf Maharaja Todar Mal's powerful administrative intellect, and this is the system which has received encouragement all over India under the British rule. But neither the old Regulations nor our, present Land Revenue and Rent Acts force the zamindar to adopt the system of pure cash payments in preference to the other two methods. I am Unaware of any further kind of 'rent' or lagan which went beyond the principle of the three main methods which I have thus described, though there were mixed methods of paying rent. At any rate, so long as the law does not make the matter so clear as to place it beyond doubt, I shall not be willing to interpret the word 'rent' as used in the Revenue and Bent Acts in any such way as would operate in defeasance of the rights of the agricultural population.
24. But what do those two Acts themselves indicate? I have already shown that they cannot, without involving immense inconsistency, be taken to use the word 'rent' as including the services of a mimic. And I will now show that there is every indication that the Rent Act uses the word in no sense which goes beyond the principle of the three old methods of receiving lagan horn kashtkars or cultivators. And once this interpretation of the word 'rent' is accepted, the whole Act becomes consistent and intelligible. We have then Section 24, Clause (b), relating to purely cash payments, and Clause (c) relating to the instalments of such payments. Then comes Clause (e), which distinctly relates to the other two kinds of lagan, namely, 'rent payable in kind' or 'calculated on a valuation of the produce'--the former being batai, and the latter being usually called kankut in most parts of the country. The three methods of receiving rent are kept in view throughout by the Act, and whilst in connection with purely cash payments no great difficulties as to the amount of rent oan arise, we have the whole of Section 43 devoted to providing rules in respect of the other two methods of realising lagan or rent, with the object of providing a remedy both for the landlord and the tenant. The provisions, then, both in respect of distress and suits for recovery of rent, become intelligible, and the body of the Act presents no contradiction of its preamble. And in this light the definition of 'rent' in Clause (2), Section 3 of the Act, when it uses the three words 'paid, delivered or rendered,' must be taken to refer respectively to rent paid in cash, to rent delivered in kind, and to rent rendered by appraisement, the native words for the three methods being 'naqad,' 'batai,' and ' kankut.'
25. I may here add that lands held under any other system, that is to say, lands granted either for past or continuing services, or for personal merit or worth (as in the case of religious or Charitable grants), which involved no rent in any of the three forms above described, were all known under the generic name of muafi or 'rent free'--a term having many sub-divisions (such as shankalap, etc.), and one of them is well known as chakran or chakri, that is, service tenure, to which Section 41, Regulation VIII of 1793, related, rendering them liable to redemption and assessment. All these were regarded as 'rent-free,' simply because they were not subject to anything which could be called 'rent,' whatever the origin, the motive, the object or the conditions of the grant, may have been. In the present case, according to the plaintiff's own allegation, 'the father of the plaintiff remitted the rent of the land in suit to the ancestors of Nasiba, defendant, on the occasion of the birth of Muhammad Ismail Khan, plaintiff, on the condition of hs performing the services of naqqal (mimic). The ancestors of Nasiba and Nasiba himself continued to perform the services in lieu of the rent of the land, and they were recorded in the settlement papers to be in possession as servants.' This, taken at its best, would go to show that no 'rent' in the sense in which I have explained the word was taken for the land. There is indeed tip allegation to this effect, and the finding of the Lower Appellate Courts the same. The grant then, putting the plaintiff's Case at its best, was a rent-free grant of the nature of chakri.
26. This being so, the question arises whether such rent-free grants fall under the purview of Section 30 of the Bent Act, or of Sections 79-89 of the Revenue Act, so as to oust the jurisdiction of the Civil Courts under Section 95, Clause (c), of the former, or under Section 241, Clause (h), of the latter Act. The answer to this question, as I have already shown, has been given in two different ways in the two rulings of this Court, to which I have already referred. In Puran Mal v. Padma I.L.R. 7 All. 732 the first point in the ratio decidendi was that the operation of Section 30 of the Rent Act, as well as of Section 79 of the Revenue Act, must be restricted to such grants as were contemplated by Section 10 of Regulation XIX of 1793. I am willing to concur in this proposition. But then what was the scope of that section of the Regulation? The answer given by the ruling is, that it is limited to 'permanent grants,' and would not include grants under which the grantee' would continue to occupy it as long as he continued to give his services.' With due deference. I am unable to accept this limitation of the scope of that Regulation or of the sections of the present Rent and Revenue Acts already referred to. A grant for 999 years (a not unusual term of an English lease) is not a permanent alienation, and I do not think such a grant would be excluded from the operation of the Regulation and the Acts to which I have referred. To impose a restriction upon general expressions, especial reasons or express words are necessary, and whilst there is nothing in those enactments to justify the restriction, the principle upon which they proceed clearly indicates that the policy on which the prohibition as to such grants proceeds would be applicable as much to permanent grants as to grants for a term of years.
27. The policy of the law, as indicated by the preamble of the Regulation, seems clear enough. In India, what would be called free-hold in England, vests in the State till it itself alienates its rights to private individuals. The ultimate ownership of the soil thus rests in the State, but upon the soil, in this part of the country, exists two classes of interests. The first is that of the cultivator, who makes that soil yield produce; the second is that of the zamindar, who standing in the position of the middleman, facilitates the recovery by the State of its share of the produce. The share of the State is called revenue as distinguished from rent, which is the share of the zamindar in the produce of the soil. He takes the rent from the cultivator, and out of such rent pays over the share of the State. He is called proprietor; but his proprietorship is qualified by the great incident that if he does not pay the government revenue his proprietorship ceases, much in the same manner as non-payment of a mortgage results in foreclosure or sale of the property. Such being the nature of zamindari rights, it is then that upon the maxim that no one oan give more than he has, any alienation of land by the zamindar, purporting to make it free of its liability to Government revenue, would be void. Upon general principles he may indeed alienate his own right to take rent; but even in respect of such alienations the State is so far interested that the zamindar thereby reduces his own pecuniary means to meet the Government demand of revenue. Such alienations, whether permanent or temporary, have this tendency in effect pro tanto.
28. Regulation XIX of 1793 was passed to obviate both these evils inter-alia and Section 10 has this doubly aspect. On the one hand, it declared the invalidity of 'all grants for folding land exempt from the payment of revenue,' and, on the other hand, it required and authorized persons possessing 'the proprietary right in any estate' 'to collect rents from such lands at the rates of the pargana, and to dispossess the grantee of the proprietary right in the land, and to re-annex it to the estate or taluq in which it may be situated.' These, two aspects of the Regulation appear in other parts of it also, and the sections of the present Kent and Revenue Acts (above referred to) aim at the same two results. Under certain conditions they authorize proprietors 'to resume such grants or to assess rent on the land'--the former right involving eviction of the grantee, the latter implying that he is left in possession, but is made liable to payment. But both these remedies, as I have already indicated, have for their ultimate aim the security of the Government revenue, which the law declares is the first charge upon land, and Section 83 of the Revenue Act declares that 'no length of rent-free occupancy of any land, nor any grant of land made by the proprietor, shall release such land from its liability to be charged with the payment of Government revenue.'
29. I have described these matters at such length because they show the whole policy of the law, and afford indications of the principles which regulate questions of jurisdiction. It may be stated as a general rule that all matters affecting or regulating Government revenue are placed by the Legislature beyond the jurisdiction of the Civil Courts, for reasons of policy which it is beyond my province to question. Section 241 of our Revenue Act justifies this observation, whilst Section 95 of the Rent Act indicates the same conclusion. And if this interpretation is right the present suit could not lie in the Civil Court.
30. But what is the nature of the suit? It begins by stating facts which mean a 'rent-free grant' according to my interpretation of the term. Then the reason for resumption is stated to be that ' the defendant (Nasiba) having acquired the knowledge of Persian, does not now perform the services of a naqqal (mimic), and he has sold the land to Waris Ali, defendant, for Rs. 150, on the 26th May 1883. As the defendant has discontinued performing the services, he has no right to the land, nor was he competent to make the sale, nor could the vendee (Waris Ali) acquire any valid title.' The defence of Nasiba was that the land was given to his ancestors rent-free' hundreds of years ago ' as a reward, and that 'the naqqal has to perform no services, nor was this land given to the ancestors of the defendants subject to any condition.' The defence of the vendee, Waris Ali, was in keeping with that of his vendor, Nasiba, in whom he set up a proprietary title. Such being the dispute, it seems to me that it was 'a matter provided for in Sections 79 to 89 (both inclusive)' of the Revenue Act, within the meaning of Clause (h) of Section 241. And for similar reasons it would fall under Clause (c) of Section 95 of the Rent Act. And this conclusion is supported by the only finding of fact at which the Lower Appellate Court has arrived. The learned Judge says: 'As far as the evidence on the record goes, it seems to prove that occupation of the land by Nasiba's predecessors free of rent had its origin in services rendered by those persons to the zamindars. They were mimics, and doubtless followed their calling, and amused the company at marriages and festivals. Nasiba has ceased to follow the calling of a mimic, and the plaintiff wishes to eject him from the land or assess rent upon it. This is the best finding on the facts at which this Court can arrive.'
31. Upon this finding, which we are bound to accept in second appeal, it seems to me clear that no rent, either in kind or in cash by valuation of the crops, or in cash by fixing the amount, was overpaid for the land. And if this is so, that land constituted a rent-free grant, and the claim amounts to nothing more or less than resumption of such grant or subjecting it to assessment of rent.
32. The exact terms of the grant do not appear from any document or any specific oral evidence. All that has been said or proved is, that the grant was made on the occasion of the birth of a son in lieu of services as a mimic or naqqal. But there is nothing to establish that the continued performance of such services was the condition upon which the grant was to be held. To use the words of the Lords of the Privy Council in Forbes v. Meer Mahomed Tuquee 18 Moo. I.A. at p. 464 'there is a dear distinction between the grant of an estate burdened with a certain service and the grant of an office the performance of whose duties are remunerated by the use of certain lands. And Their Lordships went on to say: 'Assuming it to be u grant of the former kind, Their Lordships do not dispute that it might have been so expressed as to make the continued performance of the services a condition to the continuance of the tenure. But in such a case, either the continued performance of the service would be the whole motive to, and consideration for, the grant, or the instrument would, by express words, declare that, the service ceasing, the tenure should determine.' And no such conditions being proved, Their Lordships said: 'Hence the grant may be said to have been made pro servitiis impensis et impendendis--partly as a reward for past, partly as an inducement for future services.' Whether the grant in this case was of this nature or of the other, it was a rent-free grant all the same; and in calling it 'rent-free' I am only using the expression as employed by the Lords of the Privy Council in the case just referred to. And this being so, the incidents of the tenure as to resumption or assessment of rent would be governed by Section 30 of the Bent Act and Sections 79-84 of the Revenue Act, being matters which lie beyond the jurisdiction of the Civil Court. Whether the defendant Nasiba had, under those provisions, acquired a proprietary title under Clause (d) of Section 30 of the Rent Act, or under Section 82 of the Revenue Act, is a question which, for want of jurisdiction of the Civil Court, I am not called upon to determine in this case. For it is admitted that such rights as Nasiba had have been sold by him to Waris Ali, appellant, under the sale-deed of the 26th May 1883, and the latter therefore' 'stands in the shoes of the former, for purposes either of resumption or of assessment of rent. Nor do I, under this view, feel myself called upon to decide the question of res judicata, or to enter into the merits of the case, and the only ground upon which I base my judgment is the want of jurisdiction of the Civil Court. For these reasons, I regret I am unable to concur with my learned brother OLDFIELD in the conclusions at which he has arrived, and I would decree this appeal, and, setting aside the decrees of both the lower Courts, dismiss the suit with costs in all the Courts.