INJAL DEVI Vs. BHUJYA AVAJI RAMOSHI

JUDGEMENT

(1.) THIS appeal raises a short but very interesting question of law whether a presumption of permanent tenancy under Section 83 of the Bombay Land Revenue Code, 1879, can arise in the case of land belonging to a temple. The few facts which are necessary for the purpose of the appeal are these. The land in suit is dewasthan inam land belonging to the deities Shri Injal Devi and Maruti Dev of Apasinge. The suit was brought by the vahivatdar or manager of the temple for possession of the land. The defendants are the tenants of the land and contended that they had been in possession of it for a very long time. They had at the trial relied on a kaul or grant of permanent tenancy of the year 1845 under which they claimed Mirashi rights. In the alternative they had claimed that they were permanent tenants under Section 83 of the Bombay Land Revenue Code. The trial Judge found that the kaul which was produced to prove the grant of Mirashi rights was not such as could be relied on. He therefore held that the defendants had not proved that they were Mirasdars. That is a finding of fact which is not challenged now. The learned Judge also found that the defendants' ancestors had been on the land as far back as 1857, that the origin of the tenancy was lost in antiquity, and there was no satisfactory evidence forthcoming with regard to its commencement or the period of its intended duration. He therefore held that a presumption of permanent tenancy under Section 83 of the Bombay Land Revenue Code arose. He held that the plaintiff was entitled to obtain enhancement of rent and he enhanced the rent to twice the assessment. The judgment was confirmed in appeal by the Extra Assistant Judge of Satara. The plaintiff has come in appeal.

(2.) THE only question which has been argued before us is whether a presumption of permanent tenancy under Section 83 of the Bombay Land Revenue Code can arise with regard to land belonging to a temple. THE appellant contends that such a presumption cannot be raised, and in support of this contention reliance is placed on the decision of the Privy Council in Daivasikhamani Ponnambala Desikar v. Periyanan Chetti (1936) 38 Bom. L.R. 702, P.C.. That was a case of a permanent lease of land belonging to a temple made by the manager. It was held by their Lordships that a permanent lease or absolute alienation of debutter property is beyond the ordinary powers of management whether in the case of the head of a math, the sebait of a family idol or the dharmakarta (manager) of a temple: such alienation can be justified only by proof of necessity for the preservation of the endowment or institution; and that in the case of the manager of a temple, as in the case of the head of a math, a permanent lease granted or an alienation by sale made by him is not altogether void, but is valid during his tenure of office. THE position as regards the powers of a manager of temple property was stated by the Privy Council in Subbaiya Pandaram v. Mohamad Mustapha Maracayar (1923) L.R. 50 I.A. 295: s.c. 25 Bom. L.R. 1275, 1277 as follows (p. 299): In each case they relate to the effect of an attempt on the part of a trustee to dispose of the property by a permanent mukurrari lease. This he has no power to do, though he is at liberty: to dispose of it during the period of his life and a grant made for a longer period is good, but good only to the extent of his own life interest. It follows, therefore, that possession during his life is not adverse, and that upon his death the succeeding trustee would be at liberty to institute proceedings to recover the estate, and the statute would only run against him as from the time when he assumed the office.