Brahmottar lands, as defined in the Assam Land and Revenue Regulation, 1886, are heritable and transferable without restriction, subject to the provisions of the Regulation.

Judgment

GAJENDRAGADKAR, J. : These two appeals arise from a suit instituted by the appellant in the Court of the Special Subordinate Judge,Assam Valley Districts, in which he claimed a declaration that the sale deeds of lands described in detail in the various Schedules attached to the plaint were void and for possession of the lands covered by the said sale deeds. His case was that Madhab Temple at Hajo is a very ancient temple and the Assam Rajahs had grants lands to the Bardeuries (temple officials) to enable them to render service to the deities installed in the said temple. The lands thus granted to the temple officials were endowed lands and the same had been burdened with service to the temple; in other words, the grantees were entitled to enjoy the lands on condition that they rendered the requisite service to the temple. As a corollary of the burden imposed on the grantees by the said grant the lands were inalienable to strangers though they could be transferred to any of the Bardeuries of the temple. According to the appellant the said lands had originally been granted to Hem Kanta Sarma and Uma Kanta Sarma who were then the worshippers at the temple. The respondents who were impleaded to the suit represented the heirs of the original grantees and assignees from those heirs. The appellant has brought this suit on behalf of the Madhab Temple at Hajo, and his case is that the alienations made by the worshippers in favour of non-worshippers were invalid and so the temple was entitled to claim a declaration as set out in the plaint and to ask for possession of the lands unauthorisedly transferred to the predecesors in title of the respondents. The lands in suit have been described in detail and specified in three Schedules called Ka, Kha and Ga.

2. The respondents denied this claim. They urged that the original grants were not burdened with service and were alienable without any restriction whatever. They also pleaded that they had purchased the lands bona fide for valuable consideration and without notice of any such burden or obligation subsisting on the lands. Besides, they added a plea of limitation in respect of the lands specified in Schedules Kha and Ga.

3. The trial court upheld the appellant s contention and made a finding that the lands in suit were burdened with service with the result that the impugned alienations were void. It also found that the purchasers had not shown that they had made adequate enquiries and so their plea that they were purchasers without notice could not be sustained. On the question of limitation, however, it accepted the plea raised by the respondents in respect of the lands described in Schedules Kha and Ga. In regard to the lands described in Schedule Ka the trial Court directed that the appellant should obtain delivery of possession of the said lands through the transferor-defendants or their heir if the latter were willing to render service to the temple; otherwise the appellant was held entitled to get independent possession and the said transferors would be deemed to have relinquished their interest in the said lands.

4. This decree gave rise to cross appeals before the District Court. The said appeals were heard together and the appellate court confirmed the decree passed by the trial court in respect of Kha and Ga lands. In regard to the lands in Schedule Ka the appellate court maintained the declaration in favour of the appellant but discharged the conditional decree for possession because it held that in regard to the said lands the appellant must be left to move the sovereign authority to sue for resumption of the said lands.

5. This appellate decree became the subject matter of two appeals and cross objections before the High Court. The High Court has held that the finding concurrently recorded by the courts below in regard to the burden subsisting on the lands in question was based on evidence most of which was hearsay and the whole of which taken together was meagre and insu