DAVOOD ROWTHER Vs. RENUKA DEVI AMMAN TEMPLE

JUDGEMENT

(1.) THIS appeal must be allowed. The short question raised on behalf of the appellants is that the lower appellate Court, in deciding on the question of necessity for the grant of the permanent lease to the defendants by previous trustees, did not take into consideration the fact that the grant of the permanent lease found by the lower appellate Court was more than 60 or 70 years ago and that, therefore, there could not, reasonably speaking, be any material or evidence available directly to establish such justification or necessity for the grant of the permanent lease. The lower appellate Court has also failed in coming to a conclusion on the question to take into consideration the circumstance that successive dharmakarthas are shown by the receipts granted by them to have ratified the permanent lease and recognized the lessees as holders of a permanent lease. The learned vakil for the appellant has drawn our attention in this matter to the observations of their Lordships of the Judicial Committee in Magniram Sitaram V/s. Kasturibhai Manibhai A.I.R. 1922 P.C. 163 as also in Murugesam Pillai v. Manicka Vasaga Deiska Dnana Sambandha Pandara Sannadhi A.I.R. 1917 P.C. 6 Though it cannot be said that the burden, generally speaking, of establishing the circumstances under which the grant of a permanent lease by a trustee of a devasthanam came properly to be made is on those who set up and rely upon such a grant, still the observations of their Lordships of the Privy Council in the said two cases clearly show that, when the grant was fairly ancient and successive dharmakarthas have ratified the transaction, there is, generally speaking, a presumption that the grant was made under circumstances of necessity and justification. As the lower appellate Court has not taken this presumption referred to by the Judicial Committee into consideration in arriving at a conclusion, it is necessary that the judgment and decree of the lower appellate Court should be reversed and the case remanded to that Court for disposal with special reference to the said presumption. Indeed the learned vakil for the respondents could not possibly say that this is not the right course to be adopted in the circumstances of the case. While fairly conceding that in the circumstances of the case that would be the proper course, he asked us to allow his client, the plaintiff, an opportunity to adduce fresh documentary evidence in the lower appeallate Court. As the ground on which we are remanding the case for fresh disposal has no reference to any piece of evidence, and has regard only to the general presumptions arising under certain circumstances, the request that opportunity should be given to the plaintiff to adduce fresh evidence can not be granted. The case will accordingly be remanded to the lower appellate Court. The costs of this second appeal as also of the appeal to the lower appellate Court, will be provided for in the final judgment to be passed by that Court.