Jagat Narayan, J.:— These are connected cases which can be conveniently disposed of by one judgment. Second appeal No. 8/58 arises out of a suit for declaration, possession and mesne profits instituted by respondents Nos. 1 to 9 against respondents Nos. 10 to 13 and Dhananjai appellant for a declaration that they are hereditary Pujaris of the Charbhuja temple at Bhilwara, for possession over the office and for past pendente lite and future mesne profits.
2. Concurrent findings of fact were arrived at by the courts below. Having heard the learned counsel for the appellant and having perused the record I am satisfied that not only the findings of fact arrived at by the two courts below are not vitiated by any error of law, but are also abundantly supported by the oral and documentary evidence on record including the admission of the witnesses produced on behalf of Dhananjai appellant who alone out of the 5 defendants contested the suit. From the evidence on record it is established that the temple in suit was founded by one Sadaram Deopura who belonged to the Maheshwari community. He was not residing in Bhilwara where the temple was situated, but was a resident of Udaipur. From a grant made in Smt. 1814 by the erstwhile State of Mewar it appears that Lalji and Kesarji were the Pujaris of the temple in that year and land was granted to them by the State in this capacity. The plaintiffs are the descendants of Lalji and Kesarji. They are the hereditary Pujaris of this temple. They do Seva Puja in turn of 15 days each by rotation. In Smt. 2005 Birdi Chand, one of the descendants of Lalji and Keasrji, died leaving a widow Smt. Gauri who executed a sale-deed in respect of her husband's Osra to one Nathulal. This sale-deed was challenged by Gokaldass father of Prabhulal plaintiff No. 3 by means of a suit which was instituted in Smt. 2005. During the pendency of the suit Birdi Ghand's Osra was handed over to defendants Nos. 1 to 4 by the remaining hereditary Pujaris. This arrangement worked satisfactorily till Smt. 2009. On 26-3-52 when Kalyanmal plaintiff's Osra was to begin defendants Nos. 1 to 4 did not hand over the charge of the temple to him. They handed over the charge of the temple to Dhananjai defendant No. 5. The defendants thus dispossessed the plaintiffs from the office of hereditary Pujaris. The present suit was then instituted on 17-1-54 against these 5 defendants. It appears from the evidence on record that members of the Maheshwari community have been managing the temple as de facto managers. They were not satisfied with the Seva Puja carried on by the plaintiffs and in an attempt to displace them they instigated defendants 1 to 4 to hand over the possession over the temple as Pujari to defendant No. 5.
3. Two questions of law were raised on behalf of the appellant. One was whether the suit could be decided without impleading the members of the Maheshwari community who were acting as de facto managers and the other was whether mesne profits can be decreed in a case like the present one.
4. It may be mentioned here that the case put forward by Dhananjai appellant was that the temple was managed by the members of the Maheshwari community, that it were they who put defendants Nos. 1 to 4 in charge of the templea at first and then appointed defendant No. 5 as Pujari and that the suit could not proceed without impleading them. Both the courts below overruled the plea that members of the Maheshwari community who were managing the temple were necessary parties to the suit. I do not see why the present suit could not be decided without impleading them. If the members of the Maheshwari community had themselves dome forward for being impleaded as parties to the suit different considerations would have become applicable and they would have been impleaded as proper parties in all probability. But they cannot be regarded as necessary parties, as the plaintiffs do not claim through them but rely on their independent right as hereditary Pujaris.
5. Coming now to the second contention, the argument is that the offerings made at a temple are voluntary and uncertain and no mesne profits can be awarded in respect of them. Reliance is placed on the following decisions:—Ramessur Mookerjee v. Ishan Chander Mookerjee(1), Kashi Chandra Chuckerbutty v. Kaliash Chandra(2), Kirshnasami v. Krishnama(3) and Bala Sundri v. Radha Kishan(4).
6. The decision in Ramessur Mookerjee v. Ishan Chander Mookerjee(1) was followed in Kashi Chandra Chuckerbutty v. Kailash Chandra(2). The latter decision was followed in Bala Sundri v. Radha Kishan(4). It was observed in the earliest of these cases namely Ramessur Mookerjee v. Ishan Chander Mookerjee (1)—
“So far, also, as the plaint prays for damages on the ground that the plaintiffs have been prevented from receiving certain sums which they might have received, if they had the custody of the idols, the suit is also bad, for no suit will lie to recover damages based upon such uncertain and merely voluntary payments.”
7. The reasoning given in Kashi Chandra Chuckerbutty v. Kailash Chandra(2) runs as follows—
“It has been found, and it is practically undisputed, that the offerings to the idol, which constituted the profits of the Shebait during his turn of worship, are in their nature uncertain and voluntary. That being so it cannot be said that the plaintiff is entitled to recover from the defendants that which they have received out of the offerings made by votaries during the time that the worship was performed by them, even, if the plaintiff was the person entitled to perform the worship during that time. In so far as the offerings were intended for the idol the plaintiff can have no personal claim to them, and in so far as they were intended for the Shebait of the idol they, being in their nature voluntary, must be taken to have been intended for the person who was then performing the worship, whether rightfully or wrongfully as against any other person who had a better title to perform the worship during the same time.
Upon neither view can the plaintiff claim to recover the amount.
It has been argued that, if the plaintiff's right to perform the worship during his proper turn had not been interfered with by the defendant, he would have made some profit. But what the amount of that profit would have been is wholly uncertain and there is no knowing whether any votaries would have paid anything if they knew that it would go to the plaintiff, and not to the defendant, who was then actually performing the duties of a shebait.
The view we take is in accordance with the decision of this Court in the case of Ramessur Mookerjee v. Ishan Chander Mookerjee (1).”
8. In Krishnasami v. Krishnama Charyar (3) it was observed that damages cannot be given for the injury suffered by reason of the loss of voluntary offerings, because the injury is too remote and uncertain to be safely measured.
9. All the above decisions were considered by a Division Bench of the Madras High Court in Balasubramania Sastri v. Ponusami Iyer(5) in which it was observed as follows:—
“But read carefully, they seem to us to be reconcilable with the result of the English authorities, to which we shall refer, that the question is only whether the amount of damage can be assessed, the voluntary character of the income being immaterial, if an assessment of its amount can be made. In Krishnasami v. Krishnama Charyar(3) it is no doubt said that—
‘damages cannot be given for the injury suffered by reason of the loss of voluntary offerings, because the injury is too remote and uncertain to be safely measured.’
But in that case, the damages were claimed as accruing owing to the loss of prestige sustained by certain worshippers from the interruption of their performance of the temple services by persons who attempted to join as officiants, in their recital of the ritual and the consequent diminution of offerings to the former. The facts there differed from those before us because there was no question of the exclusion of the plaintiffs from the right to perform services, for the performance of which they might be paid direct; and in any case the judgment proceeded:
“It is possible that other causes wholly unconnected with the wrong may have influenced the persons, who might have made such offerings to withdraw their donations.”
No such suggestion has been made here and no evidence consistent with it has been given. Again in Ramessur Mookerjee v. Ishan Chander Mookerjee(1) the Court held on facts, which are not fully stated, that no suit would lie to recover damages based on uncertain and merely voluntary payments, such as those in question. These are the strongest cases for defendants and they can be explained consistently with the English decisions next to be referred to on the ground that the Court held that income could not in fact be ascertained, its voluntary character being no doubt an obstacle in the way of ascertaining ??? Those English decisions are Penn v. Spiers & Pond(6), Great Western Railway Company v. Helps(7) and Manabens v. Leon(8). The two first mentioned were no doubt decided with reference to the definition of “earnings” in the Workmen's Compensation Act; but we have not been shown how that affects the principle involved, which is that although part of the income in question consisted in “tips” which like the payments here to plaintiff were voluntary, it was as it admittedly is here in the contemplation of the parties that if would be received and that as plaintiff was prevented by defendants' action from receiving it he was entitled to claim it as damages.
10. So far as the facts of the present case are concerned the courts below have found no difficulty in assessing the mesne profits. Even from the evidence of Gordhanlal D.W 14 it is clear that the minimum mesne profits amount to Rs. 2/- or 2/8/- per day. The evidence on record does not show that there was any material variation in the income from the offerings during the time when Dhananjai defendant No. 5 was acting as Pujari. It was also argued on behalf of the appellant that no allowance had been made for the amount spent by the appellant on the actual worship. It was upto him to prove this amount but he did not prove it. In any case even according to the evidence of the defendants' witnesses the average monthly income is Rs. 60/- to Rs. 75/- per month and the rate at which the mesne profits have been decreed is only Rs. 50/- per month. There is sufficient allowance in it for the expenditure which the Pujari might be incurring in performing daily ceremonies of worship.
11. I accordingly confirm the decree of the lower appellate court and dismiss the second appeal with costs.
12. When the decree in the suit was put into execution Dhananjai filed an objection that it was inexecutable. The executing court overruled this objection. Against the order of the executing court Dhananjai filed a first appeal and a second appeal both of which were rejected. Execution of the decree was then ordered. Thereupon Kashirarn, Ranglalj Nathulal and Ram Kumar who are members of the Maheshwari community of Bhilwara filed an application in the executing court objecting to the execution on the ground that they are in possession of the temple. A date for hearing the objection was fixed. On that date the applicants failed to appear and the objection was heard and rejected by the executing court in their absence on 23-5-60. Against that order the present revision application No. 244/1960 has been filed. A preliminary objection has been taken that this revision application is not maintainable as the executing court had no jurisdiction to entertain the objection of the applicants. Reliance is placed on the decision in Ibrahim v. Phoolchand(9). It was held that before an investigation is made under Rule 97 of Order 21 it is necessary that an application should be made to the court by the decree-holder that he was being obstructed in the execution of the decree and that no investigation can be made on an application of a third party who claims to be in possession. In the present case the decree holder has not yet complained of obstruction. In view of the above decision the preliminary objection must be upheld.
13. It may however be observed that the applicants claim to be in possession of the temple as managers. The plaintiffs do not claim possession as managers. They claim possession over the office of Pujari only as hereditary Pujaris of the temple. Delivery of possession of the temple will not amount to ouster of the applicants. But it is necessary to deliver physical possession over the temple to the plaintiffs as hereditary Pujaris to enable them to discharge their duties. In Smt. Bansi Devi v. Girdharlal(10) it was held that a hereditary Pujari cannot be removed from the office of Shebait without the intervention of the court. As the members of the Maheshwari community have not obtained a decree of the court removing the plaintiffs from the office of hereditary Pujari they are not entitled to obstruct the latter in the performance of their duties as Pujaris. The executing court has ample power to deliver possession even against a person who was not a party to the original suit provided it is satisfied that the person offering resistence to delivery of possession has no bona fide claim.
14. The revision application is accordingly dismissed. In the circumstances of the case, I direct that parties shall bear their own costs of this revision application. Leave to file special appeal was prayed for and is declined.
15. The stay order passed in the revision application is discharged. Let the executing court be informed accordingly.