Oldfield, J.
1. This appeal relates to the claim of the Maharajah of Jeypore to eject the the defendant, Thatraz of Bissemkatak, from that estate and to recover from him arrears of kattubadi and profits on the grounds that he has denied his liability to pay Rs. 15,000 annually and to render service and has defaulted in both respects in each year from October 1903, such payment and service being the tenure on which the estate is held. Defendant's contentions are that (1) he holds at a fixed jama of Rs. 2,200 only, (2) that the income of his estate was excluded from the assets of Jeypore for the purpose of the Permanent Settlement and that, therefore, his jama is not liable to enhancement, or his estate to resumption, and (3) he is bound to no service.
2. We refer to the Thatraz as defendant, though he died pending the suit, and his widow was impleaded in his place.
3. The Jeypore Maharajah owns a large zemindary of over 12,900 square miles extent, situated in the hill tracts of the Vinagapatam District, of which the Bissemkatak estate, measuring approximately 500 square miles, forms part. Those tracts came under the British Government at the Permanent Settlement in 1802. But for many years they were without local Courts, Magistracy or Police, being until 1839 under the Courts on the plains. By Act XXIV of 1839 they were placed for all purposes under the Agent to the Governor and were subject to the law, as represented by rules framed thereunder. Before 1863, however, there were, in fact, neither British Magistracy nor Police in Jeypore territory. During the greater part of the period from 1869, with which we are concerned, the country was, as the District Gazetteer shows, intermittently in a state of private war between Jeypore and its neighbour, Vizianagaram, or its feudatories, including defendant's predecessors. In these circumstances, the origin and development of titles would naturally be obscure and the evidence regarding them meagre and ambiguous. It is not, however, on that account permissible to treat the burden of proof, as it devolves on either party, as discharged, until a reasonable degree of certitude has been reached, or to refuse, to the prejudice of the one, to draw inferences from substantial defects in the evidence of the other.
4. The case for plaintiff is that Bissemkatak was settled and has always been treated as part of Jeypore, that early in the last century it was granted to one Ramachandra, great-great-grand-father of defendant, with the designation of Thatraz (lord of the army), in remuneration for and for the continuance of his services, that it was resumed by Jeypore in 1816 and retained under direct management till after 1846, that Narandra, grand-son of Ramachandra, having obtained possession by intriguing with the then Maharajah's son, accepted a lease on an obligation for service in respect of the provision of 700 pailcs (men at arms) and for payment of Rs. 2,500 per annum, and that this payment was enhanced to Rs. 5,000 in 1864 and Rs. 15,000 in 1877, the number of paiks being then reduced to 500. During the minority of plaintiff and defendant, the Agent to the Governor in charge of their estates commuted, the service temporarily for an annual payment of Rs. 1,500. In 1903, defendant, on attaining majority, refused to render the service and offered to pay only Rs. 2,200 repudiating further obligation by a letter, Exhibit BB, dated 26th November 1904.
5. It is not disputed that plaintiff must prove his right to resume, or that he can, in no circumstances, resume lands not included in the assets on which his zemindari was permanently settled. The first important question is, therefore, whether the Bissemkatak estate was among those assets. Defendant has attempted to meet plaintiff's evidence that it was so (1) directly and (2) by proof that the estate became his before the Permanent Settlement under a grant, Exhibit VI, dated 1689. In connection with the alleged history of this grant reference will be made to facts which bear also on the decision of the other questions before us, whether the claim to rent at a higher rate than Exhibit VI authorises is sustainable and whether the estate, having been included in the Settlement assets, fulfils the further conditions, entailing liability to resumption, which authority prescribes.
6. The evidence regarding the Permanent Settlement begins with the Circuit Committee's reports, Exhibits NN and NNI. The lower Court in its paragraph No. 33 refused to attach importance to these accounts : and it may have been justified in doing so as regards matters of detail, as distinct from the principles followed. And the fact that they purport to bring the whole income of Bissemkatak into Settlement and make no reference to the restriction of Jeypore's receipts from it to the tribute of Rs. 2,200, for which defendant contends, is not without weight. No such objection, moreover, can be made to the next documents, Exhibits A and B, the cowle granted to Jeypore in 1795, and the sanad, which replaced it, dated 1803 but apparently delivered later. In them and the correspondence connected with the former, there is no sort of distinction made between Bissemkatak and the other divisions of the zemindari, which (it is not disputed) were included with their full incomes in the assets. The sanad embodied the Permanent Settement. To the probability that the then Thatraz would have failed to plead Exhibit VI at it and obtain recognition of his independent status, we shall return. At present the point is that, all allowance made for the remoteness of these hill tracts and the lack of information available regarding them, those responsible in 1803, the Collector, the Special Committee and Govenment, are not likely to have excluded from Settlement the greater part of the income of a substantial estate, which they mentioned and of the circumstances of which they had some information (vide Exhibits VIII and IX), without being conscious of and referring to having done so. No doubt, as the lower Court observes, and Exhibits Al and AS show, the peishkush payable to Government was fixed arbitrarily and without direct reference to the income which Jeypore would receive. But it does not follow, and there is no general or special reason to be founded on the interest of either Government or the zemindars concerned, for supposing that the Settlement was, or was intended to be, incomplete or other than comprehensive of all assests in the settled tracts. Dffendant does not suggest that any part of the income of his estate, other than that represented by his liability to Jeypore, was settled separately. The documents referred to are, in our opinion, sufficient to transfer the burden of proof from plaintiff on this point.
7. Defendant relies to discharge it first, on the correspondence preliminary to the issue of Exhibit D, relating to the abolition of sayer or customs revenue in the tracts under Settlement. In Exhibit VIII, in 1802, Mr. Webb, the Collector, referred to Bissemkatat as held on a hereditary tenure by a proprietor, with whom it would be necessary to negotiate through Jeypore for the closure of a rhowky or custom-house on its borders : and in Ehhibit IX, 1803, his successor, Mr. Alexander, described it as not immediately under the management of Jeypore, but constituting a small separate zemindari held by the Thatraz'. It does not, however, follow that the possession of a chowky by Bissemkatak involved its independence. For, it is clear from Exhibit VII that it was accountable for the sayer collected by it to Jeypore : and the meaning may well be that a revision of the agreement between it and Jeypore as to the collection would have to be arranged. Mr. Alexander had been Secretary to the Circuit Committee (Exhibit A3). But his experience as Collector had been short when Exhibit IX was written: and nothing therein entails his meaning that Bissemkatak was subject to a fixed., tribute, or had independent assets over which Jeypore had no claim. If he, or Mr. Webb, had meant that, they must have gone on to do what no record suggests their contemplating and what was never done, settle with Bissemkatak on those assets independently. And in fact these letters strongly support plaintiff's case that the omission to make such Settlement was intentional and was due to the fact that the Settlement with Jeypore was known to be comprehensive.
8. Further argument for a different intention has been based on the details of the account alleged to have been submitted with Exhibt IX, Exhibit B and VII series, when the Jeypore peishkush, fixed by Lord Hobart at Rs. 25,000, was reduced to Rs. 16,000 in consequence of the abolition of the sayer. In Exhibit IX, an attempt was made for the first time to deal with the actual income of the zemindari, Mr. Alexander estimating the hardship involved in the loss of the sayer revenue with reference to the actual income which Jeypore would receive after it, and arriving at that actual income by substituting for the income shown in Exhibit N, NI from Bissemkatak and Gunnupore pergunnahs, the only parts of the zemindari not under direct management, the actual fixed income therefrom, Rs. 3,344 in the case of the former, thus excluding the farmer's profit. And defendant, therefore, argued that, in Mr. Alexander's opinion, only that actual income had been included in the assets on which the Settlement was made. Again, having thus estimated the Jeypore income, he reached his conclusion as to the effect of the abolition of the sayar by deducting from it the total sayer for the zemindari shown in Exhibit Vllb, less that derived from Bissemkatak and Gunupore : and this also, it is said, involves that they were treated by him as independent estates, with which separate Settlement would be necessary.
9. One answer to the first of these arguments is that materials for it are not available, since it depends on the allegation that fixed income from Bissemkatak was Rs. 3,344; and that rests only on Mr. Alexander's statement in Exhibit IX, which is, as will appear, of questionable value, and on Exhibit Vila. This fixed income is material in connection also with defendant's argument in support of Exhibit VI, and it is, therefore, necessary to deal with Exhibit VIIa closely. It is an unsigned account and is not referred to explicitly as an enclosure to Exhibit IX or elsewhere in the correspondence : and, though objection was taken to its admission in the lower Court, there is nothing regarding its history or origin. It accordingly differs from Exhibit VII which has in its favour the fact that the figures in it are repeated in, and were presumably the basis of, Exhibit B1, the enclosure to the report of the Board of Revenue to Government, Exhibit B. Both accounts as their headings show, purport to have been furnished Jay the lopaykari, or subordinate zemindar. Samburaju. He may be identical with the Somanatha referred to at page 233, District Gazetteer. But, if so, his description of himself as lopayikari, not as Thatraz, is peculiar. Mr. Alexander, no doubt, in Exhibit IX referred only to the Thatran, but the extent of his appreciation of the facts is doubtful. In the circumstances, plaintiff's explanation that the person in question, whether Somanath or some temporary renter, Samburaj, claimed no independent status, calls for consideration in this connection and in another to bo referred to later. The heading of Exhibit VIIa describes it as the kham irusalnama of Bissemkatak that is the gross remittance account, as kham bhogatta in the heading of Exhibit VII means gross demand account (Vide Wilson's Glossary). But the explanation for the differences between the figures in the two accounts for the same years, that Exhibit VII shows gross collections and remittances to the Bissemkatak. Estate Treasury and Exhibit Vila the net remittances by Bissemkatak to Jeypore, is inconsistent with that interpretation of the former term. No explanation, moreover, has been offered for (he reference to remissions in Exhibit Vila, in one year as much as Rs. 550, which are inconsistent with the theory that the Rs. 3,344, the figure on which defendant relies, was a fixed payment for land revenue and sayer. In these ciricum-stances, we cannot act on Exhibit VIIa as authentic, and the reference to Rs. 3,344, in Exhibit IX alone, is then insufficient ground for a conclusion.
10. For, to deal with the second objection to defendant's argument, scrutiny of Exhibit IX makes it doubtful whether Mr. Alexander wrote with any clear understanding of the facts : and the diposal of the matter by the Board of Revenue and Government did not consist in any adoption of his proposals, or involve anything which can be regarded as security for the correctness of his statements. As regards the first point, in paragraph No. 7 of Exhibit IX, Mr. Alexander wrote as though tie terms of the sanad to be granted were still open to discussion and referred to his attempts to obtain accounts in order to an estimate of the Jeypore and other zemindaris, as though accounts, to which he made no reference, had not already been obtained by the Circuit Committee. Yet, having obtained Exhibit VII and (in some way) the figure, Rs. 3,344, he made no attempt to propose a revised peishkush on the fresh facts available, but adopted that of Rs. 25,000 already fixed, as beyond controversy. Next, in his calculation, he overlooked the fact that the fixed payment of Rs. 3,344, retained by him, in the Jeypore income, in fact included Rs. 1,115 on account of the sayer, then under abolition, which should have been excluded, if the calculation was to be correct; and he did so, although, if defendant's contention is valid, he had Exhibit Vll series before him, in which the fixed payment for sayer is distinctly referred to. Lastly, he referred to Exhibit A, Lord Hobart's cowle, as promising a deduction from the peislilmsh in consideration of the abolition of sayer, though it expressly negatived the right to one; and the explanation offered, that the reference is really to an annual cowle in some year subsequent to 1794, is useless, since the issue of such a cowle rests only on defendant's own statement in Exhibit YY6 in 1904. When these objections to Exhibit IX are unrebutted, it is not possible to assume the competence of its author, or the accuracy of his other statements, including those relating to the fixed annual payment, or the independent sayer of Bissemkatak and Gunupore. And next, the lower Court erred in its statement that Mr. Alexander's proposals were adopted by higher authorities. He, first, in Exhibit IX, estimated the hardship to Jeypore, which the loss of the sayer would entail, and then proposed that a proportionate deduction from peishkush should be made. But the Board of Revenue, on whose report, Exhibit B, Government acted did not follow him in either of these directions. For, it proposed no proportionate deduction from peishkush, but a deduction of Rs. 9,000, pretty evidently a round figure for Rs. 9,223, Mr. Alexander's estimate of actual collection for sayer; and, if it did follow him in adopting the latter figure and excluding the Bissemkatak and Gunupore sayer from it, it is probable that it did so from inadvertence, since its reference to the Collector's estimate is general and includes no mention of these two estates, or the necessity for a.separate Settlement with them. Exhibit B in fact contains nothing, which entails or suggests that the portion of Mr. Alexander's report on which defendant relies, was or need have been treated as material in order to the disposal of the matter; and there is, therefore, no sufficient security for the correctness of his statements. The direct objection to plaintiff's case based on Exhibits VII and IX series must, therefore, be disallowed.
11. We turn next to defendant's claim that he holds the estate under a grant, Exhibit VI, dated 1689, his sole obligation being a payment of Rs. 2,200 per annum. The burden of proof of this grant is on him. Exhibit VI, the authenticity of which he must establish, is an inscribed copper plate; and we have not been shown that there is any intrinsic probability against its fabrication at a date later than that which it bears. Direct evidence of its origin is not to be expected, and defendant, therefore, relies on Section 90 of the Indian Evidence Act, that is on evidence of its production from proper custody in circumstances justifying the making of the presumption authorised by that provision. The custody of Exhibit VI was, it is certain, with Government from 1891, when it was given by defendant's witness No. 11 to the Special Assistant Asrent, then in immediate charge under the Agent of Bissemkatak estate during defendant's minority, until it was restored to him after he attained majority in 1903. That custody, no doubt, might be held proper. But it is the only established fact in this part of the case; and we are not prepared to draw the necessary presumption with reference to it alone. We, therefore, deal with the circumstances in which the custody by Government is alleged to have originated.
12. They begin with the fact that in 1853. disputes between the predecessors of the parties as to the tenure of Bissemkatak reached a climax, and the Agent summoned, them in order to a settlement. The then Thatraz, instead of appearing, sent the petition, Exhibit X, in which he Complained of the aggressions of one of the Maharajah's subordinates, stated his own case and enclosed what is now alleged to have been a translation of Exhibit VI. On account of the absence of both parties no settlement was effected, the Agent merely recording his opinion that an attempt should be made to fix a proper sum as rent or kattubadi for Bissemkatak. It is now, however, alleged that Kxhibit Vl was actually produced before the A gent by a representative of the Thatraz for the purpose of the enquiry, who retained it after taking it back owing to a quarrel over his master's failure to give him land as remuneration for his services. That representative is said to have been Narayana Patnaik, father of Karunakar Patnaik, an estate employee, now deceased. 12th defendant's witness's evidence is that he received Exhibit VI and three account books from Karunakra for safe custody, when the latter anticipated a search of his house by the Special Assistant Agent, Mr. Elwin, in connection with a charge of malversation, but handed them over to defendant's witness No. 3, defendant's mother, who sent them by her brother, defendant's witness No. 12, to Mr. Elwin whilst he was at Bissemkatak.
13. This case teems with improbabilities and inconsistencies. It was first put forward in any detail in paragraph 17 of Exhibit YY6, a representation made by defendant to Government in 1904, and based according to defendant's witness No. 13, who prepared it, on information obtained from defendant's witness No. 3. But the story, as told in Exhibit YY6, differs from that supported by Exhibit X series and that which defendant's witness No. 3 gave in evidence on the authority of her mother in-law. For, Exhibit YY6, refers to the document as actually produced before and taken back from the Agent; the order on Exhibit X, Exhibit Xb, implies that there was no inquiry at which evidence can be supposed to have been adduced : and defendant's witness No. 3 understood that Narayana Patnaik secreted Exhibit VI and did uot produce it before the Agent at all. Next the identity of the agent employed by the Thatraz is uncertain. For the signatory of Exhibit X on his behalf was Narain Doss, and he cannot have been the same as Narain Patnaik, Doss being a Brahmin and Patnaik, a Sudra description. Again Exhibit QQQ shows that Narain Patnaik did receive land, service inam No. 10, from the Thatraz, and that Karunakara held it after him : and though this does not preclude his having quarrelled with his employer on the ground that the grant was insufficient, it and his and Karunakara's retention in service make it highly improbable that they were wrongfully retaining an essential estate record, which the Thatraz would naturally be eager to recover. Lastly, the details of the story as to the recovery of Exhibit VI before its surrender to Mr. Elwin are insufficiently supported. He, no doubt, has probably forgotten and could have given no evidence as to what he was told : and the letter sent by defendant's witness No. 3 with Exhibit VI has no doubt been destroyed. But of the three witnesses concerned, defendant's witnesses Nos. 8 and 11 are defendant's close relatives and defendant's witness No. 12 his low paid servant. The story is not probable. For Karunakara could have found many better ways of secreting Exhibit VI than depositing it with an untrustworthy person such as the last mentioned : and it will be shown later that the conduct of defendant's witnesses Nos. 3 and 11, of whom the former professes full knowledge of the importance of the document, was improbable in respect of their failure to rely on it.
14. The direct evidence in support of Exhibit VI standing thus, it might be unnecessary to deal with the plaintiff's argument to rebut it. One branch of that argument, his attack on the document on intrinsic grounds, has been considered fully by the lower Court, and we can concur on its rejection of it, because data, for it are wanting. For it depends on the allegation that a different method of inscribing copper plates was in vogue in Jeypore in 1689 and on discrepancies between the terms of Exhibit VI and historical facts, or statements in Exhibit RRR, a communication by plaintiff to Government : and the allegation and facts are not, in our opinion, adequately established, whilst the statements are in no way binding on the plaintiff in this suit and may easily have been mistaken. The other branch of the argument, however, includes references to past occasions, on which it is alleged that Exhibit VI was, or, if it half really been in the Thatrast's knowledge or possession, should have been, relied on : and they would, in any case, have called for mention in connection with the nature of defendant's tenure and the plaintiff's right to resume. We, therefore, proceed to a survey of the course of defendant's enjoyment and deal with them as they occur in it.
15. Though Exhibit VI is dated 1689, it is admitted that its existence was not referred to until 1853 in Exhibit X. Defendant, however, relies, first, on the fact evidenced by certain copper plates, that the Thatraz was making permanent grants of land, as consistent only with his tenure having been such as Exhibit VI entails. Dealing only with those at the end of the 18th century, prior to the Permanent Settlement, I observe that the evidence for the authenticity of these copper plates is no better than that regarding Exhibit VI itself. The objection that the dates in Exhibits XXVIII, XXVIIIa, XXVIIIb, and XXVIIIc are alleged to be inconsistent with one or other of the two Hindu systems of chronology, according to which they are stated, has been established as regards at least Exhibit XXVIIIc. Exhibit XXVIII scries was not produced by the grantees, when the Agent inquired into alienations of estate lands in 1896 (Exhibit QQQ) : and the evidence as to custody, that of defendant's witness No. 6, does not show that it was proper, since there is nothing to connect the Seshaji Mutt referred to by him with the original grantees : the Mutt, in fact, relied also on another later grant, Exhibit CCCC, by plaintiff's predecessor. As regards Exhibit XXXII, dated 1768, there is the evidence of the grantee's descendant, defendant witness No. 7, and the estate manager, defendant's witness No. 14. Neither explains the recent custody of the document, or the fact that, Exhibit XXXII providing for a free grant, a quit-rent, which has once been enhanced, is now paid : the grantee was a Brahmin, and the grant should appear in Exhibit NNI among shrotriems, not among tarasf or service inam villages. Exhibit XXVII in 1872 is the grant of a village mentioned in Exhibits NNI and QQQ : but no copper plate is referred to in the latter, and the evidence of 16th defendant's witness as to the amount now payable to the Thatraz is not reconcilable with them, or the terms of the Exhibit. 1 cannot, in these circumstances, hold that these copper plate grants have beer: proved, or are the grants under which the properties in question are or were held. They would, in any case, be of small weight as assertions of ownership by the Thatraz against the Maharajah, when, as appears at pages 46 to 48, District Gazetteer, the whole District was the scene of armed conflict, in which both were active. This conflict ceased shortly before Lord Hobart's cowle and the Permanent Settlment.
16. It is urged, and the lower Court has held, that there is no special probability that Exhibit VI would, if it had existed, have been referred to then by the Thatraz or Government. We have already declined to assume that Government made no enquiries and had no knowledge as to the Bissemkatak tenure.
17. We add that the Thatraz, who was deprived of his immediate reponsibility for collecting the sayer, can hardly have been ignorant of the pending Settlement and his duty to assert himself. Exhibit VII, already referred to, relates to the estate at this juncture. But we doubt whether it is safe to argue, from the reference fo Samburaj in it, in favour of or iigaiust enjoyment as Thatraz by defendant's predecessor.
18. The amount payable under the sanad then granted, Exhibit B, has been referred to by the lower Court as involving a substantial correspondence betweeii the portion of it assessed on Bissemkatak and the Rs, 2,200 specified in Exhibit VI and as, therefore, supporting tha existence of the latter in 1803. The argument, by which the apportionment to Bissemkatak of Its. 2,229 out of the total peishkush is reached, is that based on Exhibits VII series and X, which we have already rejected. We add only that, if the liability of the Thatraz were really fixed under Exhibit VI, the difference of Rs. 29 would require explanation and that none has been given.
19. As regards the next period from 1803 until about 1845, it is plaintiff's case that before 1816 the Maharajah had removed the Thatraz and resumed his estate. Defendant entirely denies this, admitting, however, that the Maharajah attempted usurpation, waged war against the then Thatraz, Ramachandra, and imprisoned him. No distinct evidence as to this period is to be expected, when (as appears from the District Gazetteer, page 268) Jeypore remained an almost unknown quantity to the officers of the District. Exhibit ZZ series are indeed Jeypore accounts for 1633 and 1836, showing that a varying income, corresponding neither with that secured by Exhibit VI, nor any lease elsewhere referred to, was realised; but they are of no special value. If, therefore, a conclusion is to be reached, it must rest on the evidence as to occurrences in 1845 when, according to plaintiff, the imprisoned Thatraz, Ramachandra, and his son, Krishnachandra, were dead, and the latter's son, Narendra, attempted to regain possession (vide Exhibit TT2 and YY6, the latter a statement by defendant's predecessor). The only definite fact is that, as Exhibit if series, suit registers of the agent's Court, show, in 1845 and 1846, Narendra sued the Maharajah for possession of the Bissemkatak estate and for Rs. 4,500 profits; ard the direct inference is that the former had been dispossessed. The lower Court has refused to draw it because (1) it accepted the statement of Narendra in Exhibit X in 1853, that, the suit was for surplus funds sfter deducting the jamabandi, (2) the Maharajah, defendant, applied in the earlier suit by Exhibit XXXIX for attachment of the property and, therefore, could not have been in possession of it. But the answer to (1) is, first, that Narendra's statements in Exhibit X, made after the beginning of the dispute with the Maharajah, cannot be evidence in his successor's favour; and next, that there is no reason for preferring them to the explicit statements in Exhibit F series, official records, when, moreover, there is no reconciliation between the reference to surplus income leas jamabandi as amounting to Rs. 4,800 and that in Exhibit F to the annual income as only rs. 5,200. As regards Exhibit XXXIX, it is doubtfal, in view of the probable laxity of procedure, whether any inference can be justified. It is, however, to be observed that if, as ^e lower Court held and Narendra alleged in Exhibit X, the suits were for past income only, an application for attachment of the property itself would have been out of place. The explanation is probably to be found in two facts. Firstly, as Narendra admitted in Exhibit X and defendant in Exhibit YY6, the former's possession had been interfered with; and secondly, as Exhibit E series show, Bissemkatak had been attached by Government for arrears of revenue due by Jeypore, and its release was ordered in June 1844 or about a year before the earlier of the suits was filed. This attachment is not in itself significant with reference to the independence of the former estate since, on either party's case, it would have been liable for such arrears in consequence of its inclusion in the Jeypore sanad. But it is at least possible that the Maharajah took this opportunity and made his application in order to impose on the Court the responsibility for terminating the confusion in enjoyment, which the attachment would have enhanced. In dealing with this part of the case, the extent to which plaintiff's contentions are conceded is material. In Exhibit X, Narendra's petition in 1853, he said that he had been compulsorily prevented from managing, and defendant in Exhibit YY6 admitted that it was only in 1842, after the imprisonment and exile of his grandfather and father, that Narendra raised his forces to regain possession. When so much is admitted, there is no reason for distrusting the explicit statements in Exhibit F series that possession was sued for, or holding that Narendra was in possession in 1845-6. The suits (and it is possible that they were really only ones readmitted and renumbered) were in any case dismissed for default The inference is prima facie that Narendra could not sustain them and had not the almost conclusive evidence, Exhibit VI, in his possession. The lower Court rejects this conclusion, firstly, on the ground that in the disturbed state of the country, these legal proceedings would have been a sheer farce. But something more is necessary to explain Narendra's abandonment of litigation, which he had thought it worth while to institute. Defendant s explanation is based on the statement in Exhibit X that satisfaction was obtained from the Maharajah out of Court, presumably the lease at Rs. 1,500 referred to in Exhibit K; and it is argued that having obtained thislowrental, Narendra would nothave relied on Exhibit VI, which made him liable , for Rs. 2,200. But Exhibit X is, as already observed, inadmissible in defendant's favour. The lease at Rs. 1,500 is referred to only in Exhibit K and it is described there as justified by the jungly nature of the estate and as merely temporary; and it, therefore, was not obviously more fidvantageous than the permanent tenure under Exhibit VI. Moreover, if the latter document had existed, it is to be supposed that it was known to the Maharajah, or would have been brought to his notice in the course of the negotiations : and that its surrender would have been insisted on. The inference that Exhibit VI was not in Narendra's possession at this time must, therefore, be sustained.
20. This deposition of the Thatraz and his reentry are the foundation of plaintiff's contentions, that his services were dispensed with by the Maharajah and his estate resumed, that his original right was extinguished and that, whatever its extent, the new grant under which he re-entered does not justify his present pretensions. This contention is the subject of issue V. We concur in the lower Court's finding on it in defendant's favour holding that the occurrences between 1824 and 1842 left the right of his predecessor , unaffected. That decision, however, will not be of use to defendant, since we shall hold that such right was not as extensive as he alleges : and we, therefore, give our reasons for it only shortly. Firstly, with reference to Vizianagaram Maharaja v. Suryanarayana 9 M.p 307 : 13 I.A. 32 : 4 Sar. P.C.J. 696 : 10 Ind. Jur. 193, we do not think that the evidence establishes anything of the nature of a resumption and re-grant on a new sanad and different tenure, or more than a dispossession and re instatement. And next, so far as plaintiff relies on defendant's failure to regain possession by suit during his exclusion from the estate over twelve years, from 1824 till at least 1842, more probably 1846, that is supported only by reference to Section 18, Regulation II of 1802, and Sita Ham Vasuder v. Khandorav Balkrishna 1 B.p 286, Radhabai and Ramchandra Konher v. Anantrav Bhagvant Deshpande 9 B.k 198 and Gunga Gobind Mundul v. Collector of the Twenty-four Pergunnahs 11 M.I.A. 345 : 7 W.R. 21; 1 Suth. P.C.J. 676 : 2 Sar. P.C.J. 284 : 20 E.R. 131. Those decisions, however, dealt witli the Regulation applicable in Bombay; and the lower Court was right in following Secretary of Stale v. Vira Rayan 9 M.p 175 to the contrary effect. Reference may also be made to the decision of the Privy Council in Fatimatulnissa Begum v. Sundar Das 27 C.p 1004 : 27 I.A. 103 : 4 C.W.N. 565 on Section 1, Act XIV of 1875, a provision similar to that in the Madras Regulation. Authority is against plaintiff's contention and it must fail.
21. The lease at Rs. 1,500 is referred to in Exhibit K as granted by the Maharajah. But in the plaint it is alleged as granted by his son who was at feud with him, and as subject to a further obligation for service with 700 paiJcs (men-at-arms). We shall return to the evidence regarding service. It is sufficient that this lease was superseded by another in 1854 at Rs. 2,500 with the same condition for service. The lower Court's finding to that effect is not disputed, and the objections to it and subsequent leases based on coercion and misrepresentation have not been pressed in this Court. Reference has already been made to Exhibit X and the Agent's attempted negotiation in 1853 in connection with the alleged first reliance on Exhibit VI; and it is now to be noted that the failure of the Thatraz, to appear before him and produce that document acquires additional significance in view of his further failure to rely on it to resist the enhancement of rent, which took place in the following year. There is, moreover, the fact that the tianslation given in Exhibit X of the copper plate then referred to differs from Exhibit VI in the important respect that it does not specify the Thatraz or any other person as grantee, an omission not likely to have been due to inadvertence in the circumstances. There is, accordingly, room for doubt whether Exhibit VI was in fact referred to in Exhibit X and strong reason against belief in the Thatraz's possession of it. There is no suggestion in Exhibit YY6 that this rent of Rs. 2,500 was not paid from 1855 to 1863 : and Exhibit WW, a return submitted to Government in 1862, refers to it. The fact that this lease was superseded in 1864 by another at Rs. 5,000 is not disputed here. It is, however, contended that the latter had no effect, because there is no evidence of any payment of rent under it, and that it involved no enhancement of rent, because it included in addition to Bissemkatak additional land, the Rayabiji Muttah. But, the lease being admitted, it is for defendant to show that it was ineffective : and, though there is no evidence on either side as regards the period, there is again no suggestion in Exhibit YY6 consistent with defendant's contention, and there are explicit references to this lease in the next lease, Exhibit HHH1 and Exhibit HHH2. The argument that there was no enhancement is untenable, being based only on the fact that in 1865 the Diwan of the Thatraz remonstrated with the Maharajah for not reducing the people of Rayabiji to submission in accordance with his promise and on the mference that Rayabiji had been newly included in the lease. That inference, however, corresponds with nothing in exhibit YY6, or elsewhere in evidence. It was not suggested in the lower Court, and it is not clear from any available information, that Rayabiji had not been leased as part of Bissemkatak throughout. The next and last lease, that in 1877, is evidenced by Exhibit HHH1, copy of patta obtained from the Agent's office, the original having been lost or destroyed by fire (vide Exhibit TT) : and the first point taken against it is that it is inadmissible, because the original would be inadmissible, being, unstamped. The first answer is that no Stamp Act is shown to have been applied to the Vizagpatam Agency, including Jeypore, after the supersession of the ordinary law in it under Act XXIV of 1839. The next is that the originals of Exhibit HHH series cannot be taken to have been unstamped, if a stamp was required. The burden of proof that this was so would in England be on defendant's side [Marine Investment Co. v. Haviside 5 H.L. 624 : 42 L.J. Ch. 173. But, even if the law is different in India, we should still hold on the evidence that Exhibit HHH1 had been duly executed. The oral evidence of persons who saw it is interested and untrustworthy on both sides.Nothing can be inferred from plaintiff's failure to produce the corresponding muchrilika, the original of Exhibit HHH2; for there is no reason for supposing that it would show whether the patta, Exhibit HHH1, was stamped or not. But then, apart from any presumption under Section 114 of the Indian Evidence Act, there is the correspondence to be referred to, which shows that the transaction was carried through with the knowledge of the Agent and his assistant, who might, at any time, have called for the original document and would have impounded it, if it had been their duty to do so : and there is the evidence of defendant's witnesses Nos. 3 and 15 and Exhibit XXXI to show that it was actually on one occasion sent to the Agent for reference. In these circumstances, a decision is justified that it was in order and bore a stamp, if in fact a Stamp was required. Defendant has applied to us to admit further documentary evidence in appeal from the records handed over to him by Government, after he attained majority. But we find that he was informed of the existence of these records and invited to arrange for their transfer by the Agent's letter, dated 22nd February 1910, filed with his affidavit, that is, after the examination of plaintiff's witness No. 11 and before his own evidence was taken. If, therefore, he had shown ordinary diligence, he could have produced these documents at the trial. Their admission now would, accordingly, be unjustifiable.
22. The evidence regarding this case is contained in Exhibits G, H, J, K, GG, RR, SS, GGG, HHH, LLL series and XXVI. It shows that owing to the failure of the Thatraz to perform what may for the present be referred to as his service on two occasions, the Maharaja proposed to resume his estate : that the Agent, who was informed of this intention, intended to inquire judicially into his right to do so or to enhance the rent, and reported his intention for the information of Government , and that, when the Settlement embodied in the original of Exhibit HHH was effected, he insisted on satisfying himself as to its terms. The proceedings were, accordingly, in no way Lurried or perfunctory, and the Thatraz was in effect, invited to resist an enhancement. Yet he made no attempt to do so by alleging the existence of Exhibit VI, or moving the Agent to obtain its production. The result was that lie accepted Exhibit HHH with the greatly increased rental of Rs. 15,000 and an obligation for attendance with 500 paiks.
23. In the succeeding year, as Exhibit FFF shows, the Thatraz considered himself bound by Exhibit HHH1 : and Exhibit KKK series, the Jeypore accounts, justify a conclusion that payments were made in accordance with the lease until defendant's accession and the assumption of charge of his estate by Government during his minority. He, ip fact, gave effect to his intention expressed in Exhibit FFF and attempted to presume on the increase in his own rent fey raising that of the holders of three subordinate tenures, one created by himself, Vide Exhibits N, O, Q, R. From 1877 until 1890, the only other incident calling for notice is the Agent's statement in Exhibit TT2, a report in 1883, that he had heard at Bissemkatak of a copper plate patta, which was not then to be found. But this reference is not of weight, since there is nothing available regarding the extent of the Agent's inquiries, or the source of his information : and as he referred to the patta as for Rs. 2,500, it in no way probablises the case for Exhibit VI for a rent of Rs. 2,200. After Government assumed charge of the estate, Rs. 15,000 was paid annually without demur on the part of defendant's relatives, although, in recommending the assumption in Exhibit TT, the Agent had doubted whether the grant should be acknowledged in its present permanent form. His doing so possibly led to defendant's present attempt to disclaim it. The manner, however, in which the attempt was made, indicated no intention to rely on any tenure such as Exhibit VI. For, it began with a plea in Exhibit GG, that it would be inconvenient or impossible to render service and it was only in Exhibit YYI that plaintiff was informed of the claim to hold at a permanent rent of Rs. 2,200 witV.out service, and that claim was then based, not on Exhibit VI, but on the Permanent Settlement.
24. This closes the story of the relations between the parties : and the first conclusion authorised by it is against the authenticity of Exhibit VI. Whatever the interest or duty of the Thatraz to plend it up to and at the Permanent Settlement (and it is not so clear, as the lower Court supposes, that he had none) his failure to rely on it on subsequent occasions is irreconcilable with his knowledge, or possession of it, or its existence. It has already been shown that the evidence, as to its custody immediately before its production in 1891 is unsubstantial. In these circumstances, we cannot make any presumption under Section 90 of the Indian Evidence Act regarding it and we, therefore, dismiss it from consideration, finding issue II in plaintiff's favour.
25. This result reached and defendant's arguments founded on Exhibit B series, VII series and IX having been rejected, there is no reason against accepting plaintiff's contention, based on the explicit and unqualified references to Bissemkatak in Exhibits A and I), that it formed part of the assets on which plaintiff's zamindari was permanently settled and was not treated as lekhiraj or land exempt from the payment of public revenue, That is our finding on issues I and III. The Question is then whether the Maharajah wasentitled to make the subsequent enhancements of rent and whether plaintiff is entitled to claim at Rs. 15,000, the rate provided in Exhibit HHH1.
26. Defendant relies in this connection on the reference in Clause 4 of the sannad, Exhibit D, to 'alienated lands, paying a small quit-rent, (which quit-rent, unchangeable by you is included in the assets of your zemindari) a an unqualified prohibition of enhancements, such as plaintiff lias proved. Comparison of the Clause with the corresponding Section 4 of Regulation XXV of 1802 shows that a small quit-rent meant a favourable one. But the provision is otherwise obscure and we have been shown no authority explaining it. Argument has been based on Section 12. It, however, forbids only the appropriation of land to religious or other purposes with the intention that it shall be exempt from its portion of the public tax and the resumption or enhancement of the assessment on land already so appropriated at the date of the Settlement. We observe, first, that the word 'alienated' in Clause 4 is, in our opinion, to be understood as covering only permanent grants, fince there is no warrant in authority or practice for applying it to mere temporary leases, however long their currency, such as those pleaded by plaintiff, which ara not shown to have been, or to have been understood by the parties to them as being, permanent. Next, none of those leases is shown to have been at a favourable rent. For, the only evidence as to the actual yield of Bissemkatak is the Circuit Committee's account, Exhibit NNI, and we agree with the lower Court that it is of little value [vide also Venkata Narasimha Appa Rao Bahadur v. Sobhanadri Appa Rao Bahadur 8 Bom. L.R. 1 : 10 C.W.N. 161 : 33 I.A. 46 and there is nothing improbable in the suggestion made in Exhibit K and elsewhere that the rent was increased, as the country was reclaimed. Lastly, Clause 4 in our opinion, prohibits enhancements imposed by the zemindar, not those, to which the lessee consents, as we have found that the That Thatraz did in the present case. In the result we find on issues VI VII and XVII that the rent of Rs. 15,000 and the other enhanced rents accepted previously in 1854 and 1861 were not within the mischief of, and the first mentioned is not unenforceable by reason of, Clause 4 of Exhibit D. No other objection has bsen argued in this Court in this connection, and plaintiff is, therefore, entitled to recover the amounts claimed by him in accordance with Exhibit HHH1.
27. His remaining claim, to resume defendant's estate, must be dealt with on consideration of the service character of its tenure For, it is not suggested that defendant would not be entitled to relief against the forfeiture incurred in respect of his default in payment of rent; and his description of his holding as independent and permanent at a fixed rent in Exhibit BB is not such a repudiation of his landlord's title as would entitle plaintiff to relief [Kali Kishen Tagore v. Golam Ali 13 C. 3, Kali Krishna Tagore v. Golam Ally 13 C.p 248. 17 M.p 218 : 3 M.L.J. 287 and Unhamma Devi v. Vaikunta Hegde 17 M.p 218 : 3 M.L.J. 287. Detailed reference to the evidence as to service has hitherto been postponed for the sake of clearness; and we now refer shortly to the law before dealing with it. Numerous authorities have been cited. But it is useless to refer to cases such as Raja Venkatarangayya v. Poranki Appalarazu 8 Ind. Cas. 871 : 26 M.L.J. 39; (1913) M.W.N. 959 : 14 M.L.T. 514 and Parthasarathy Appa Rao v. Secretary of State 21 Ind. Cas. 871 : 26 M.L.J. 39; (1913) M.W.N. 959 : 14 M.L.T. 514, in which the claim to resume was made by Government, not the zemindar, when the material principles really lie in a small compass and can be gathered directly from two decisions, one of them recent, those of the Privy Council in Forbes v. Meer Mahomed Tuquee 13 M.I.A. 438 : 14 W.R. 28 ; 5 B.L.R. 529 : 2 Suth. P.C.J. 358 : 2Sar. P.C.J. 558 : 20 E.R. 614 and Venkata Narasimha Appa Rao Bahadur v. Sobhanadari Appa Rao Bahadur 20 M.P 52 ; 16 M.L.J. 1 : 1 M.L.T. 3 : 3 C.L.J. 1 : 3 A.L.J. 55 : 8 Bom. L.R. 1 : 10 C.W.N. 161 : 33 I.A. 46. The first condition, on which they contemplate resumption as permissible, is that the estate shall have been included in the assets of the zemindari on which the Permanent Settlement was made : our finding of fact already reached entails that this condition is complied with, and it is unnecessary for us to found our conclusion on the presumption based on the nature of the service, regarding which argument was offered. The next condition is1 that either the grant is for service in lieu of wages, in which case the grantor's right to resume is absolute, or that, if the grant is of an estate burdened with service, the grantee, even if that service is obsolete or unnecessary, is unwilling or unabli to perform it. In the present ease, however, it is in fact unnecessary to inquire which of these descriptions is applicable to the grants, because in his letter, Exhibit BB, defendant denied his obligation to render servics and impliedly refused to perform any; and such inquiry would, moreover, be meaningless, because both descriptions assume that an enforceable obligation for service is in question, and we shall hold in accordance with defendant's contention that none is established. In these circumstances we do not consider at length how far the tenure of Bissemkatak possesses the characteristics of a grant subject to a burden of service enumerated by this Court in the portion of its judgment in Venkata Narasimha Appa Rao Bahadnr v. Sobhanadri Appa Rao Bahadur 8 Bom. L.R. 1 : 10 C.W.N. 161 : 33 I.A. 46, which the Privy Council adopted. For only the presence of the second, fixity of tenure, could be discussed. As to it, a finding in the negative would follow from our conclusion that the rent was enhanced on three occasions.
28. The lower Court's findings are that the nature of the service up to 1863 was uncertain and that after that year it was rendered as matter of courtesy. It did not decide, as we are asked to do, whether anything which can be described as service is exigible from defendant at all. His obligation is described in Exhibit HHHI as attendance (1) with 500 paiks at Dusserah on the occasion of the annual festival and Durbar and (2) whenever such atiendance is directed, when the Thatraz goes on sircar business. The question is whether ihis description, read in the light of history, or as it stands, involves anything enforceable as a condition of the holding.
29. There is little doubt that prior to Permanent Settlement Bissemkaiak was held primarily on a military tenure. No doubt, the only distinct evidence to that effect is Mr. Oram's statement in Exhibit NN1. But the fact would be in accordance with the usage of this part of the country, as disclosed elsewhere in that report and the Gazetteer; and there is defendant's admission in Exhibit YY6, in accordance with his predecessor's statement in Exhibit X, that Malloo Mahunty, whoheld theestate in theseventeenth century, 'formed a well-organised force of armed men to protect himself' and that his son promised Jeypore 'military aid in exchange for a formal acknowledgment of his title.' Such military arrangements, of course, should have ceased with the Permanent Settlement in 1802; and it cannot matter that the unauthorised maintenance of armed force was actually continued till later, except in so far as it can be shown that those forces also performed private service, which the law permitted. Such maintenance is, in fact, referred to by Col. Campbell in 1852, in Exhibit XXVIla, when the Thatraz used his force against that 'of his superior of Jeypore.' And in Exhibit XXVIIb, in 1861, Sir W. Robinson wrote regarding the absence of any provision-of Government for Police and Magistracy in Jeypore and the anarchy which had resulted from the failure to assume control from the zemindar, who was not providing for it efficiently. In 1863, when the Government Police was established, the Agent, Mr. Carmichael, in Exhibit XXIV, stated that the Thatraz had been mainta-ining two hundred salaried peons and that every third man in Bissemkatak village swaggered about with a sword. He said that Jeypore 'though everywhere acknowledged as Suzerain, had not always the direct control,' and made the first distinct allusion to the nature of the service as having been 'commuted into a yearly tribute of Rs. 2,500; besides which, when specially called on to do so, the feudatory is expected to accompany the Suzerain with a numerous retinue on his travels. The last occasion of his doing so was daring the visit paid by the present Rajah of Jeypore to the Rajah of Vizianagram in 1859. The Thatrajah then came forward with a rabble of five hundred men.' The questions to which the existence of these irregular forces gave rise, were in fact stated twice from the point of view of Government by another Agent Mr. Goodrich, in 1875 and 1877, in reports, Exhibits XXV and XXVI. In the first, with general reference to the Jeypore Agency, he mentioned the existence of a numerous body of paiks, whose tenures require revision. Upon them, by the tenure of their assigned salaries or favourably assessed lands, are incumbent the Police duties of the country, the guarding of prisoners, the escort of treasure and the general duties of subordinate revenue servants,' In the second, on the occasion of the death of one Thatraz, he spoke of enhancements of rent by the Maharajah and went on to refer to the subsistence of customary service after its original military justification had been abolished. In both reports, although his point was the advisability of Government taking advantage of the service, he recognised that its character had changed and in the earlier he defined its subsisting civil and private characteristics. The period was one of transition and the evidence regarding it general, the one reference in it to a particular incident, the journey to Vizianagaram, being misleading, since 'the present Maharajah' in 1893, the date of Exhibit XXIV, had inherited in 1860 (Vide Gazetteer, page 264) and the action of the Thatraz in accompanying him in 1859 before his accession is, therefore, inconclusive and may perhaps have been part of one of the litter's intrigues against his predecessor (Gazetteer, pages 268, 269). The result is, at most, that the service, after the loss of its military character, was still regarded as subsisting for private purposes and more loosely, for such purposes as the disturbed and unorganised condition of the country led the Maharajah to provide for until about 1863. Those purposes probably included such duties in respect of the maintenance of law and order as the Code of Criminal Procedure would have imposed on landholders on the plains. But there is nothing to support a distinct conclusion as to what they were, or to show that they were of a public nature or to explain or define the terms of Exhibit HHHI.
30. The evidence as to the service of 700 paiks stipulated for by the lettings in 1854 and 1864 is general. In Exhibit UUU Government opined that the service was to wait on the Maharajah with a retinue of paiks or peons on occasions of importance, consistently with the terms of the lease of the same year, Exhibit HHHI, which have already been given. After 1877, we have indications that the Thatraz was regarded by Government as able to embody some sort of force, Exhibit AAAA series and Exhibit XXIIb and Exhibit XXIIc. But they do not entail his being in any way subject to Jeypore for the purpose. For they are all calls for assistance in quelling the same disturbance in 1880; and it is not material that Exhibit AAAA series were addressed to the Maharajah, when the other two were addressed to the Thatraz direct. As regards the duty to attend at Dusserah, default in it had been the beginning of the incidents which resulted in Exhibit HHHI in 1877. The correspondence has already been referred to and no doubt indicates that the Thatraz did not demur to the Maharajah's pretensions. Subsequent exhibits, Exhibit CCC series and TT2, show that up to 1887 there had been, attendance at Dusserah in some years and apologies for absence in others. During the minority of defendant from 1889 till 1903 the obligation to attend was commuted by the Agent in charge of his estate for a money payment, apparently without demur from his relatives. But on attaining majority, defendant, as already stated, having at first explained his absence on grounds of inconvenience, finally disclaimed all obligation in Exhibit BB.
31. The evidence, so far referred to, relates only to attendance at Dusserah, the first condition referred to HHHI. The second condition, when on Sircar business, is so indefinite to be unenforceable; and we refer to it to, relates that being in Exhibit attendance as no further. It is, accordingly, on the character of attendance, at Dusserah as an enforceable condition of the tenure that plaintiff's case depends. We do not think that attendance on ceremonial occasions is such a condition. No witness, who spoke to the course of the Durbar which is held, described anything beyond the compliments usually paid by, an inferior to a superior as passing; and we have been referred to no authority dealing with a claim to resumption, in which an obligation merely to be present, even accompanied by a retinue, was regarded as sufficient. In every case, the service consisted in the doing of some act for the benefit of the grantor; and we have been shown no reason why less should be required to prove the service character of the tenure here. Defendant's duty is at most analogous to that of English copy-holders to do suit in the Court of their manor; and default in it will not entail termination of the holding [Halsbury's Laws of England, Volume VIII, page 14].
32. Default in this attendance being insufficient to support plaintiff's claim, he has attempted to prove that a farther duty, not referred to in Exhibit HHH or definitely in any record, has been annexed to it by custom, that of guarding the idol, which on the occasion of the Dusserah is taken in procession, and he has argued that some inference as to the existence of definite enforceable duties is entailed by defendant's enjoyment of the title of Thatrax, signifying lord of the army. The second point can be dealt with shortly. We no doubt find defendant's predecessors enjoying that title from the earliest times and there are references, for instance in Exhibits HH, YYY, XXVI, to some sort of investiture, though it is not clear that it related to the title, not the estate. But it does not follow that any office, or, after the abolition of the military service, any distinctive duties were in question. For the defendant's witnesses speak of other petty tenure-holders, described only as Patros, fulfilling similar, though smaller, obligations in the way of attendance with paiks at Dusserah, and the lower Court has mentioned two zemindars whose use of the title of Thatraz is recognised, though they are independent of any superior (Gazetteer, page 298). There is, accordingly, no reason for presuming any connection between the title and subsisting obligation for service.
33. Lastly, as to the evidence that the Thatraz is bound to provide a guard for the idol, it is that his paiks take part in the procession and that a few of them guard the temple: but it includes no reason for assuming that they do so in the performance of a duty, and not in the enjoyment of a religious privilege, There is some evidence, that of 6th, 7th, 9th plaintiff's witnesses, that they received batta from the Maharajah. But it is contradictory and worthless; and, as it does not show whether the payments were simply for expenses or included remuneration, it would, if accepted, prove nothing. In these circumstances we find that no duty to guard the idol is established. As we have found that mere attendance with paiks at Dusserah is not a service default in which would justify resumption, our decision on issues IX and X must be against plaintiff's right to resume.
34. We, accordingly, allow the appeal, modifying the decree of the lower Court to the extent that plaintiff will have decree for Rs. 45,000 in respect of the kattubadi or rent due for Faslis 1313, 1314, 1315, with interest at 6 per cent, per annum to date of lower Court's decree and subsequent interest at 6 per cent. This suit is in other respects dismissed. Each party has failed as regards a substantial part of his case. We, therefore, make no order as to costs in either Court.
35. Sankaran Nair, J.--I agree. The compromise of 1877 and the exchange of patta and muchilika in the same year are not denied in appeal. The Agent holds that the agreement is illegal as it is opposed to Section 4 of the Permanent Settlement Regulation of 1802 and Clause (4), Exhibit (D).
36. I am unable to agree with the Agent that the agreement is illegal on that ground. If Exhibit VI is genuine, there is nothing to show that the amount payable under it was only a quit-rent and there is no pretence for saying that it was a favourable quit-rent. But I agree with my learned brother that it is unsafe to act upon Exhibit VI.
37. The above observation as to the rent under Exhibit VI applies also to the amount, if any, payable to the plaintiff according to Collector Alexander in 1803. The increase of rent on more than one occasion, with the knowledge and approval of the Collector, and the reason assigned for it, i.e., increase in cultivation, show, on the other hand, that what was paid was not quit-rent. Nor is there anything to show that what the chief of 'Bissemkatak' was liable to pay before the Permanent Settlement was rent for the use of land. It might have been tribute that he paid. In fact, there is no evidence to show the legal relation which subsisted between Jeypore and Bissemkatak, or that it was under a grant from the Jeypore Rajas that the Bissemkatak chief acquired this tract of country. It was not 'alienated' land under Clause (40) Exhibit D. Again, if the latter was liable to render military service to his Sovereign, then he was not holding the land for any quit-rent only and on that ground also the section would not apply.
38. For these reasons I hold that the agreement is legal and valid.
39. The defendant must, therefore, pay the rent due under the pata and muchilika.
40. It was then argued that according to the terms of the patta, the defendant is bound to render service and as he has failed to do so, the plaintiff is entitled to recover possession. Assuming the defendant is bound to render service under the agreement of 1877, there is nothing to show that the defendant forfeited the raj on default to render the same. The patta does not make it a condition. Considering that the chief of Bissemkatak was a ruler and a landed proprietor, who held land brought by him under cultivation, very strong evidence is required to prove any condition of forfeiture as alleged by appellant. The nature of the so-called service places the matter beyond doubt. The alleged service is said to be attendance at the Dusserah festival and for certain other ceremonial purposes. Besides being indefinite, this is not service. It is only a mark of respect which every person, even an official, is expected to pay and pays to his superior. I agree with what my learned brother has said on this question.
41. On this view, it is unnecessary to consider the relations of the parties before the agreement. If it is, I agree with my learned brother in his observations with one exception. I do not think that sufficient reasons have been shown to differ from the finding of the Judge in paragraph 19 of his judgment that the grants made by the Bissemkatak chief are genuine. This, however, does not affect the result.