JUDGMENT
B.N. Nigam, J.C.
1. Radha Kishan and Gopi Kishan filed Civil Suit No. 93 of 1946 against Sm. Pooni, Sm. Bala Sundri and another claiming a decree for possession of the temple of Savitrimataji at Pushkar to enable them to officiate at the worship and to receive the offerings and a decree for Rs. 750/- on account of damages and loss suffered by the plaintiffs for the period 19-1-1946 to 17-2-1946. Future damages were also claimed. A perpetual injunction restraining the defendants from interfering with the plaintiffs' right to officiate at the worship and to receive the offerings, etc., was also claimed.
The suit was contested and the learned 2nd Additional Subordinate Judge granted damages and future damages at the rate of Rs. 175/- per month. He also restrained defendants 1 and 2 from interfering with the plaintiffs' right whenever their turn comes. No order as to delivery of possession was passed apparently because by the time the judgment was delivered, no dispute on that point remained between the parties.
2. Against the judgment and decree, both parties appealed to the District Judge (Civil Appeal No. 51 of 1948 and Civil Appeal No. 69 of 1948). Both the appeals were disposed of by the learned Additional District Judge on 10-5-1952 in both the appeals, the question was as to the Quantum of damages.
The learned Additional District Judge dismissed defendant's Appeal No. 51 of 1948 and allowed the plaintiffs' Appeal No. 69 of 1948 increasing the amount of damages from Rs. 175/- to Rs. 225/- for one month, i.e., the period 19-1-1946 to 17-2-1946. Now Sm. Bala Sundri, defendant No. 2, has come up in appeal against the judgment and decree in Civil Appeals Nos. 51 and 69 of 1948. Both the appeals raise the same question and have been argued together. I, therefore, give one judgment.
The original will be placed on the file of Civil Second Appeal No. 75 of 1952 and a copy thereof will be placed on the file of Civil Second Appeal No. 76 of 1952. The judgment will govern both the appeals.
3. In the appeals, I have heard the learned counsel for the appellant and the learned counsel for respondents 1 and 2. Respondents 3 and 4 are absent despite service and the appeals have been heard ex parte against them.
4. The only question for my consideration is whether any damages could and should have been awarded and if so what. The learned counsel for the appellant has urged that the finding of the learned appellate Judge is based on no evidence whatsoever. It is pointed out that the learned Additional District Judge held that the amount of Rs. 25/- mentioned in the document referred to by him was mentioned by way of penalty. The learned Additional District Judge did not believe the plaintiff's solitary statement in support of the case that the average income was Rs. 25/- per day. Nor did he accept the case of the defendant that during the period in question defendant No. 2 had actually suffered a loss of about Rs. 224/-. The suggestion of the learned counsel for the appellant is that thus there was no evidence on the record from which any conclusion could be drawn and the finding of fact recorded by the learned Additional District Judge is, therefore, not binding on this Court.
The learned counsel for respondents 1 and 2 has urged that the learned appellate Judge has drawn a conclusion from the documents which fixed damages at Rs. 25/- per day and that as the documents were admissible in evidence, it is not proper for this Court to interfere with the conclusion arrived at. The learned counsel has relied on 6 AMLJ 1 (A), which held as below:
A finding of fact cannot be upset merely on the ground that it is against the weight of the evidence nor on the fact that the Judge has not in his judgment referred to all the evidence on the record. It is only when there is no evidence at all for the fact held to be proved or where evidence is disbelieved for no reason at all that the High Court will interfere in second appeal.
5. I am not of a different view. I agree that this Court should be reluctant in upsetting the finding of fact recorded by the first appellate Court. (His Honour held that in the present case, there was actually no evidence which could serve as the basis for the conclusion arrived at and that therefore the finding was not binding on him. His Honour then proceeded:)
6. The second question is whether any damages could and should have been awarded. The learned counsel for the appellant has urged that the arrangement by which the parties remained in possession was arrived at in an agreement in the year 1920. It is suggested that as such no damages can be awarded unless there is definite and specific proof of damages suffered. The learned counsel for respondents 1 and 2 has urged that the plaintiffs have been wrongfully deprived of possession and that in the plaint they claimed 'damages and loss suffered by them'. The learned counsel has referred to - 'Firm Kirpa Ram Brij Lal v. Municipal Committee, Amritsar',: AIR 1929 Lah 547 (B); - 'Ramaswami Chettiar v. Suppiah Chettiar', AIR 1935 Mad 699 (C); - 'Jaru Bepari v. A.G. Peters',: AIR 1942 Cal 493 (D) - 'Punnalal v. Kasturichand Ramaji',: AIR 1946 Mad 147 (E) and - 'Abdul Sughan v. Ramalah', AIR 1952 Mys 90 (F). All these rulings refer to cases of general damages consequent on trespass or other tort. None of these refer to the case of the offerings of a temple which are to some extent personal offerings. The contention of the learned counsel for the appellant is that even if damages in tort are permissible then on the basis of - 'Kashi Chandra v. Kailash Chandra', 26 Cal 356 (G), no amount can be decreed inasmuch as there is no definite proof of loss suffered by the plaintiffs and the amount of the offerings is uncertain and voluntary in character. Thus in either view, whether the damages were claimed for breach of contract or in tort, no decree for damages could be allowed.
7. Accordingly, I accept these appeals and set aside the decree granting damages for the suit period. In Civil Second Appeal No. 75 of 1952, the appellant will get her costs from respondents 1 and 2. There will be no order as to costs in Civil Second Appeal No. 76 of 1952.