1. The plaintiff sues to eject under a lease of 1857. The Munsiff found against it. Bat the District Judge has given no finding about it. He relies on the Saswathom, Exhibit III. But we cannot hold that the Uralan of a Devaswom is competent to give a permanent lease of temple properties under the circumstances set out by the Judge--Vide Mayandi Chettiar v. Chokalingam Pillay 27 M. 291 : 14 M.L.J. 200 : 8 C.W.N. 545 : 31 I.A. 88, and the cases following it. If Exhibit III is, then, invalid,' the question arises whether the defendants have acquired a title by prescription to the permanent interest. But it has been held, and we think quite rightly, that the implied surrender of the former lease must be deemed to be cancelled and the rights of the parties under that lease would revive. See Ramunni V. Kerala Varma Valia Raja 15 M. 166. As observed by the Queen's Bench in Doe Dem Earl of Egremont v. Courtney 11 Q.B.D. 702 : 17 L.J.O.B. 151 : 12 Jur. 454, in the case of a surrender implied by law from the acceptance of a new lease, a condition ought also to be understood as implied by law making void the surrender in case the new lease should be made void.' The plaintiff would then be entitled to fall back upon his old lease if true. There can be no adverse possession and a consequent title by prescription if the defendants' possession would be lawful under that lease. We must ask the District Judge to return a finding on the evidence on record on the question whether the lease mentioned in the plaint is true.' It is admitted for the appellant that if the finding be against him the appeal should stand dismissed.
2. The finding should be submitted within six weeks, and seven days will be allowed for filing objections.
3. In compliance with the above order, the District Judge submitted the following.
1. These appeals have been remanded for a finding on the following question, viz., 'Whether the lease mentioned in the plaint is true.'
2. Plaintiff alleges that the plaint properties were leased with the exception of a portion of item No. 2 to Varikara Tarwad in 1014 (1838-39). In 1031 (1855-56) that tarwad assigned its rights to defendants' karnavan Kunhi Pariyayi to whom a fresh lease, including the whole of item No. 2, was granted in 1033 (1857-58). The only evidence in support of this lease of 1033, upon which the suit is based, is the evidence of P.Ws. Nos. 5 and 6. P.W. No. 5 was Kanakkezhathu in plaintiff's Devaswom from 1031-1036 and wrote the accounts in connection with the Devaswom properties. The accounts are not produced, although accounts of 1020, 1025, and 1026 are filed as Exhibits E.F and G.P.W. No. 6 is the son of the Raja who preceded the Raja who granted the plaint lease, and is plaintiff's kariastan. There is one discrepancy between these two witnesses, for P.W. No. 5 says that to his knowledge the Raja leased only the plaint properties out of all the Devaswom properties whereas P.W. No. 6 says that the Raja granted several renewals in respect of Devaswom properties. Seeing that the witnesses are speaking of what took place in 1033, the discrepancy is not very material.
3. Apart from the oral evidence we have the recital in. Exhibit J, the Sasvitam lease granted in 1044. From that it appears that Kunhi Pariyayi had obtained permission to hold the plaint lands at a time out of mind,' according to the translation of Exhibit J, at page 58 of the printed papers. This permission can hardly refer to the lease of 1033, which was only eleven years before the execution of Exhibit J. Exhibits IX, VIII and X also show that Kunhi Pariyayi purchased a large portion of plaint item No. 2--the last purchase being in 1024. It is, therefore, unlikely that he would have taken a lease for this portion in 1033 but it has been found that item No. 2 does not include what plaintiff claims, so this argument is not of much weight. Plaintiff's omission to produce accounts throws doubt on the truth of his case as to the lease of 1034 but, on the other hand, Exhibit J clearly refers to a prior lease, for there is the recital that Kunhi Pariyayi is to pay a rent of 1 kasu as before' and plaintiff's accounts would only show the receipt of rent which is also evidenced by Exhibit J. Their non-production is, therefore, not necessarily fatal to plaintiff's case. We see from Exhibits Z and AA that the assessment of some of the plaint lands was transferred from the Devaswom to the name of Kunhi Pariyayi in Fasli 1270 (1860-61). This to a certain extent supports plaintiff's case that Kunhi Pariyayi only obtained a lease in 1857-58. It is clear from Exhibit J that Pariyayi had a prior lease and except for the recital that he had been holding from a time out of mind there is no reason why that lease should not be the lease of 1033. Defendants' case is that Kunhi Pariyayi originally occupied the lands without permission, but this is evidenced by Exhibit J; but it is possible that he was at first allowed to hold them without any lease and consequently the date of the final lease is not given. It is in evidence that the grantor of the lease (Exhibit III) was a mismanager of tarwad affairs, and for this reason the prior lease may purposely have been omitted in Exhibits J and III. These are only speculations, but in this view there is nothing improbable in the case that a lease was first granted in 1033. There is no particular reason why plaintiff should have invented a lease in this particular year, and we have the evidence of P. Ws. Nos. 5 and 6 on the point. They are, no doubt, somewhat interested witnesses, but seeing that Exhibit J points very clearly to the existence of a prior lease, I see no reason why the evidence of P. Ws. Nos. 5 and 6 that that lease was in 1033 should be rejected. I find that the plaint lease is true.
4. These second appeals and Second Appeal No. 455 of 1906 coming on for final hearing, after the return of the finding of the lower appellate Court, the Court delivered the following
5. We accept the finding, reverse the decree of the District Judge and restore that of the District Munsif. We dismiss Second Appeal No. 455 with costs, and allow Second Appeals Nos. 454 and 466 with costs in this and the lower appellate Court.