A service tenure land can be resumed if the grantee refuses to render the services required of them, even if the services are not required by the grantor. A notice is not required before resuming the land if the grantee has refused to render the services.

H.Mahapatra, J.

1. The plaintiffs, who are the appellants, brought a suit for recovery of possession in respect of 1.57 acres of land on the ground that it was originally a khidmati Jagir land given to the ancestors of the defendants second party for performing particular services to the grantors. As they had left the village and had ceased to render the services required of them, the plaintiffs claimed right of resumption of the land.

2. Defendants first party are the transferees from the defendants second party. The contest in the suit was only by and on behalf of the defendants first party. No written statement was filed by the defendants second party. It was clearly alleged in paragraph 8 of the plaint that the defendants second party had left the village and had ceased to perform the duties allotted to them under the conditions of the Jagir granted to their ancestors. This cessation of service was alleged to have been since 1360 Fasli, corresponding to 1953. The suit was instituted in 1954.

In the written statement filed by the defendants first party, it was claimed that the land was not burdened with any service nor was it in !ieu of duties to be performed by the defendants. The land had been given to the ancestors of the defendants second party on account of their hav-ing helped the plaintiffs, landlords in excavating a tank.

3. The trial Court held that the land was a jagir land burdened with service and that it was resumable and on a finding that the defendants second party had ceased to render the service required of them, the plaintiffs suit was decreed for recovery of possession. On appeal by the defendants first party, the Court of appeal below has held that the land was burdened with service but it was of the view that the grantee could not be ejected and the land could not be resumed, inasmuch as, they (the defendants) did not refuse to work no matter whether their services were required or not. It has further held that in absence of a notice by the plaintiffs on the defendants, the plaintiffs are not entitled to resume the land.

4. On the finding that the land was burdened with service, there is no doubt that the land could be resumed, if really the defendants or the grantee for the matter of that, refused to render the ser-vices which were necessary for retaining the land. If the landlords would not require such service, but the grantees would be willing and are able to render those services, it will not be open to the landlords to resume the land.

If, in case, the grantors want to discharge the grantees from service, it will be necessary for them to give notice of that and as has been held in some of the reported cases, that notice must have a reasonable period. In the present case, as alleged in paragraph 8 of the plaint, the plaintiffs case was that the defendants second party had left the village and had ceased to perform the services connected with the Jagir land. This allegation was not denied by the defendants second party as they had not filed any written statement. The case of the defendants first party, the transferees from the defendants second party, is an assertion that the land was not at all burdened with any service. They insisted that the land had been given to the ancestors of defendants second party on account of their service in the excavation of a tank, as required by the landlord.

Therefore, according to their case, it was in lieu of past service and not future service that the land was given to the defendants second party, It is true, that in their written statement, defendants first party said that the allegation made in paragraph 8 of the plaint to the effect that the defendants second party had left the village was not true, but there was no denial whatsoever of the allegation that the defendants second party had ceased rendering service connected with the Jagir land. Therefore, the case of the plaintiffs to that extent remains unchallenged in that written statement and in tha