Kanhaiya Lal and Sulaiman, JJ.
1. This is a defendants' appeal arising out of a suit brought by the plaintiff for recovery of a 3/4 ths share of a sum of Rs. 750, said to be the price of a nose-ring offered by certain wealthy pilgrims to the temple of Bindbasini Devi, at Bindhiachal. The plaintiff's case was that on the 2nd of September, 1919, he entered into an agreement with the defendants under which he was entitled to get a 12 anna share in all the offerings made by the said pilgrims; that he has received his share in respect of a number of items but the defendants have not given him anything out of the proceeds of the nose-ring., On behalf of the defendants the alleged agreement was denied and it was further pleaded that such an agreement was without consideration and was unenforceable in law. The value of Rs. 750 fixed by the plaintiff was also disputed. Both the courts below have decreed the suit in toto.
2. On appeal by the defendants it is strongly contended that the finding is insufficient to show that there was any consideration for the agreement, and that such an agreement is against public policy. And, lastly, it is urged that the finding as to the value of the jewellery is based on inadmissible evidence.
3. At the trial it seems to have been admitted by both the parties that a Panda gets his share of the offerings from Pariwals, if it is so agreed. The plaintiff is admittedly a Panda and the defendants are lessees from Pariwals whose turn it was to receive the offerings on the day in question. The courts below have gone further and accepted the plaintiff's evidence which shows that 'the Pandas take pilgrims, who visit this shrine, to the temple; they accommodate their clients at their houses, look after their comfort and go with them to the temple when they go to make offerings at the temple and to worship Deviji and though the Pandas have got no right to participate in the offerings made at the temple, yet, as a matter of practice, Pariwals give them a share, according to the terms which may be settled between the Pariwals and the Pandas, out of the offerings.'
4. There was oral evidence to prove these facts and the lower appellate court has distinctly accepted that evidence and held that Pandas are as a rule given a share out of the offering in every case by mutual understanding. It was on this finding that the lower appellate court proceeded to consider the disputed question as to whether there had in fact been any agreement between the parties or not, and it came to a finding that the agreement had been proved. In our opinion, when there was this well-known established practice under which Pandas were to do numerous acts and were given shares in the offerings, if there was an agreement to that effect, it might very well have been that no express terms were settled at the time of the agreement, for the things which had to be done or not to be done by the plaintiff might very well have been implied by the parties. On the finding recorded by the lower appellate court, there can be no doubt that such an agreement was for consideration. We find also from a judgment on the record that such an agreement has been enforced when proved. We are unable to hold that an agreement of the kind mentioned would necessarily be against public policy. Such an agreement has been enforced in previous cases and the evidence which has been accepted by both the courts below shows that as a matter of practice it is in force.
5. The finding as to the value of the jewellery is, in our opinion, a finding of fact which cannot now be disturbed. The article, the value of which was in dispute, was in the possession of the defendants and they never produced it. The plaintiff could not call upon them to produce it because it was their case that it had previously been broken up and divided by parts among the various Pariwals. It was almost impossible for the plaintiff to produce better evidence of identification than the statement of Thakur Gobind Singh, the A.D.C. to the Raja pilgrim. He gave evidence to the effect that the value of the article was Rs. 750 and he based his belief on the fact that this article had been valued by a Benares jeweller at that figure. In our opinion, in the absence of the article itself and any better evidence available, the courts below were justified in accepting that evidence as proving its true value. We are unable to hold that this evidence under the circumstances was inadmissible. The result, therefore, is that this appeal is without force and is hereby dismissed with costs.