JUDGMENT - Vyas, J.

(1) This Letters Patent appeal arises cut of a suit No. 166 of 1945 which was filed by the plaintiff for recovering possession of Survey No. 51/1 of the village Saptasagar in Athni Taluka and of 2 1/2 gunthas of land out of Survey No. 157/2 of the same village, Mr. Justice Bavdekar having reversed in second appeal the decisions of the two Courts below and having ordered the dismissal of the plaintiffs suit with costs throughout.

(2) The relevant pedigree is to be found at typed page 4 of the paper book. One Jhambhai had two sons, Rajesaheb and Farid. Rajesaheb died on August 1, 1943. His son Bapusaheb had predeceased him in the year 1913. The present plaintiff Ramijabi is the daughter of Bapusaheb, in other words, the grand-daughter of Rajesaheb. Farids son is Ghudu who is the present defendant.

(3) The suit lands, out of which Survey, No. 51/1 was originally a shetsanadi inam, were at one time the joint family properties of Rajesaheb and Farid. At a partition which took place between them the suit lands fell to the share of Rajesaheb. On May 28, 1943, Rajesaheb executed a gift-deed of the present suit properties in favour of his grand-daughter, the present plaintiff. He died nearly two months later on August 1, 1943. On November 24, 1943, the present defendant Ghudusaheb, who is the son of Rajesahebs brother Farid, applied to the revenue authorities to restore Survey No. 51/1 to him on the ground that it was japti sanadi land and therefore inalienable under the provisions of the Bombay Hereditary Offices Act, 1874 (Bom. Act No. III (3) of 1874). On August 28, 1945,the Prant, Officer ordered the land to be restored to the defendant. At that time the possession of the land, be it noted, was with the donee, namely, the present plaintiff, who had obtained it by virtue of the gift-deed passed in her favour by her grandfather Rajesaheb.

The defendant got possession of the land in pursuance of the above mentioned order of the Prant Officer on August 30, 1945, and that led to the institution of the present suit on October 2, 1945, by the plaintiff. The plaintiff brought the suit contending that the land Survey No. 51/1, which was originally shetsanadi inam land, was converted into a rayatwari holding in course of time by the commutation of service and by the levy of full assessment, in other words, by the withdrawal of the remuneration which at one time had attached to the performance of the service, the remuneration being the freedom from payment of assessment. It was contended by the plaintiff that after the service had ceased to be taken from the holder of the land and after the full assessment had started to be levied from the holder of the land, the original watan character of the land was lost and the land became a rayatwari holding, and that after that, the provisions of Act III (3) of 1874 had ceased to be applicable to this land. In other words, the contention of the plaintiff was that the land had become the private property of her grandfather after its conversion into a rayatwari holding and had been gifted to her by him and therefore she was entitled to recover back possession thereof from the defendant to whom the possession had been ordered to be given by the Prant Officer by his order dated August 28, 1945.

(4) Both the trial Court and the lower appellate Court accepted the case of the plaintiff that by reason of the commutation of service and the levy of full assessment the original watan character of the property was lost and that the land had been converted into a rayatwari holding, in other words, had become the private property of Rajesaheb and had become the property of the plaintiff by virtue of the gift-deed executed by Rajesaheb in her favour. Accordingly the suit was decreed in favour of the plaintiff by the trial Court and that decree was confirmed in appeal by the learned Judge of the lower appellate Court.

(5) The learned Judge of the lower appellate Court in his judgment pointed out that it

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