Judgement

Appeal and cross-appeal from a judgment and decree of the High Court (February 18, 1915) varying a decree of the Court of the Agent of the Governor of Madras (October 21, 1910).

The suit was brought in the Court of the Agent at Vizagapatam by the appellant against the holders of the pargana of Bissembatak for possession of that pargana, and for arrears of rent or kattubadi for three years at Us. 15,000 per annum, and for mesne profits. The claim was made under a patta dated August 1, 1877, which provided for rent at the above rate, and stated as follows " just as your father used to attend in Dashara (Dasahara (or, vernacularly, Dashara) a popular festival in honour of the goddess Durga. In the west and south it is a military festival. See Wilsons Glossary.) for service, so, now you should also present yourself with 500 paiks for service whenever directed to do so. These directions are given imperatively." The defendant was designated in the patta as " thatraj," a military title signifying commanders of paiks. There was a muchilika in substantially the same terms. The plaint alleged that the appellant had a right of forfeiture on the grounds (1.) that the defendant had refused to perform the services mentioned in the patta; and (2.) that he had repudiated the appellants title. In support of his case he relied more particularly upon the terms of a letter dated November 26, 1904, from the defendants muktyar.

The defendant by his written statement alleged an independent hereditary right to the pargana, which he alleged had been excluded from the assets of the Jeypore zamindari at the permanent settlement, only the right to the jammabundi (Rs.2200) being taken into account when fixing the peishcush. He denied that his ancestors had rendered any services as master of the paiks since 1689, and denied that there was any right to eject him or to recover rent at a higher rate than Rs.2200. He relied upon a copper-plate grant, reserving a jamma of Rs.2200 only, alleged to have been made by the then Maharaja in 1689. The defendant having died, the respondent, his widow, was substituted for him.

The facts, including the terms of the letter of November 26, 1904, above referred to, appear from the judgment of their Lordships.

A large body of oral and documentary evidence was adduced, including evidence as to the character of the service performed by the paiks.

The trial judge found that the grant of 1689 was genuine, and that under it the defendant had a permanent right to the pargana subject to the payment of Rs.2200 a year, and that that fixed jammabandi was included in the assets of the Jeypore zamindari at the permanent settlement. He held that the patta of 1877 was given in compromise of disputes, and was therefore supported by consideration. He, however, held that the agreement was invalid under the terms of the Jeypore sanad. The question of forfeiture therefore did not arise for his consideration. He made a decree for the arrears at Rs.2200 per annum, and in other respects he dismissed the claim.

On appeal the High Court agreed that the pargana formed part of the zamindari at the permanent settlement but differed from the trial judge in finding that the alleged grant of 1689 was spurious, and holding that the patta and muchilika of 1877 were valid. They accordingly varied the decree by awarding kattubadi at Rs. 15,000, otherwise they dismissed the appeal. Oldfield J. (with whose judgment Sankaran Nair J. agreed), after considering the evidence as to the character of the services rendered by the paiks, said " The second condition, attendance when on sircar business, is so indefinite as to be unenforceable ; and we refer to it no further. (The High Court proceeded upon the muchilik a in which the provision was worded as follows “ Just as my father used to attend Dashara for service, so I shall also attend now for service with 500 paik s. When I go over there on account of our sircar I shall attend for service whenever ordere