1. In finding that the streets and sites are not the property of the temple. the District Judge, while discrediting the plaintiffs evidence, had not referred to evidence on the side of the defendants which shows that certain acts which may be evidence of ownership, had been done by the Dharmakartas of the Temple from time to time. It is necessary that this evidence should be considered.
2. Again, if the property in the sub-soil of the streets is found to be in the temple, it is still possible that the streets are public streets; if they have been used by the public for the purpose of passing and repassing, that may be sufficient to raise the presumption of dedication of the street to the public for use as a highway. This aspect of the case has not been considered by either Court though it is necessary to consider it in deciding the 2nd issue.
3. If it be decided that the streets are public streets, it is further necessary to decide whether the plaintiff by 30 years' possession has acquired a right to erect and retain the pandals in question therein. This is the subject of the 3rd issue, but the District Judge has wrongly required the plaintiff to prove 60 years' possession.
4. We, therefore, ask the District Judge for revised findings on the 1st, 2nd and 3rd issues. Fresh evidence may be adduced on the 2nd issue. The findings should be submitted within six weeks from this date and seven days will be allowed for filing objections.
5. In compliance with the above judgment, the District Judge of Godavari submitted the following.
1. I have been directed by the High Court to submit revised findings on the 1st, 2nd and 3rd issues in the case.
2. First Issue: The Indian title deed has not been produced; but, it would appear from Exhibit D, that the Darmakarta' of the temple had every right to all the lands in the Agraharam except those reserved for communal purpose. It nowhere appears what the lands are that had been so reserved for communal purposes. The Agraharam was granted to the temple by the Reddies, when they were in power, in A.D. 1853, and it would be difficult now to determine whether the streets in question were in existence as such at the time.
3. I have, in these circumstances, to rely upon the evidence as to the acts of ownership that may have been exercised by the parties from time to time to arrive at a finding on this issue under consideration.
4. The first witness for the defendants bears considerable hostility to the plaintiff. In spite of it, he has admitted in his deposition that the Darmakarta of the temple had planted ten or twelve lamp posts in the streets, that the cost of the lanterns and of the oil was borne by the temple; that about the time-of the Oar festival, the streets would be repaired by the Darmakarta; that for taking bricks, tiles, stones, etc., from the poramboke lands, permission of the Darmakarta would be sought for and obtained. It would also appear that inams had been granted to the temple Mala servants to sweep the streets. On the present occasion of the re-trial of the 2nd issue, an old resident of Korukonda was examined by the defendants as their 5th witness. The evidence of this witness disclosed by his cross-examination strongly tends to support the plaintiff. Since he attained the age of discretion, the witness admitted that the temple authorities were leasing by auction the right to dig stones and earth from the Asalminaha lands; that on the festival occasions, they were collecting. fees from persons, setting up bazaars in the streets; that, till four years ago, though for a period of five or six years only, they were planting lamp posts and were lighting up the streets; that whenever repairs were thought necessary for the streets, the Darmakarta was effecting them put of the temple funds; that the residents were obtain (sic) from the Darmakarta for putting up pandals in the streets on auspicious occasions, and that the streets would be swept by the temple servants once a week. These facts were, no doubt, elicited in regard to the 2nd issue but they cannot be ignored as they also bear on other issues. They go very far towards establishing the plaintiff's claim. Until very recently, the Taluq Board never exercised any act of ownership and the defendants have not produced any accounts. showing that they had spent a pie towards the repairs of the streets. Since my last decision the ruling in M. Krishna Iyer v. The Secretary of State for India 20 M.L.J. 71 : 6 M.L.T. 306 : 4 Ind. Cas. 1070 : 33 M. 173 has appeared and there it was held that, if the plaintiff proves long possession on his part even though the proof does not extend to sixty years, it is upon the Crown to prove that it had possession within the statutory period and in the absence of such proof, the plaintiff is entitled to a declaration that he is the sole owner. The law is laid down in similar terms by the High Court in their order calling for the revised findings. The documents consisting of Exhibit I series were relied on by the defendants. They may be explained on the supposition that the assistance of the Magistrate and of the Police was invoked to maintain the right of the Darmakarta and of the public. It seems to me, on the whole, the balance of the evidence is in favour of the plaintiff.
5. Subject to the qualification it may be necessary for me to introduce in connection with my finding on the 2nd issue, I find the 1st issue for the plaintiff against the defendants.
6. 2nd Issue--Upon the evidence discussed in determining the 1st issue, I am inclined to find that the sub-soil of the streets in question does not belong to the Government. There is, however, very strong evidence of the fact that the public for a very long time have been using the streets for purpose of passing and re-passing and there is, therefore, the presumption of dedication of the streets to the public for use as a highway. But until quite recently, the Darmakarta of the temple for a very long time was maintaining the streets. The streets, I find, are public streets subject to the control of the Darmakarta. The public have every right to use them as a highway.
7. 3rd Issue.--As regards the pandal in question, the evidence for the plaintiff now receives strong support from the evidence of the 5th witness for the defendants. Such evidence proves that' the plaintiff has been exercising the right in question for over thirty years. The pandal in question has been there for a very long time, except that it was renewed or repaired on occasions.
I find the third issue for the plaintiff.
This second appeal coming for final hearing this day after the return of the above revised finding, the Court delivered the following