1. This appeal arises out of a suit brought by the plaintiff, respondent, to obtain a declaration that his maternal grandfather Goluck Nath Chuckerbutty was a shebait of the presiding deity Sri Sri Raj Rajeswar Deb of the tree of Iswar Raj Rajeswar standing on a certain piece of land, within boundaries stated in the plaint, and was in rightful enjoyment of a 1 anna 6 gundas 2 karas 2 krants share, that is a one-twelfth share of the profits pertaining to the said tree, for a further declaration that the plaintiff, as one of his daughter's sons, is entitled to a 13 gundas 1 kara and 1 krant, that is, a one-twenty-fourth share, and for a decree for possession of this last mentioned share, and for mesne profits for the three years immediately preceding the institution of the suit, the mesne profits being estimated at Rs. 50.
2. The defendant No. 1 alone defended the suit, and his defence, so far as it is necessary to be considered for the purposes of this appeal, was that the suit, was not maintainable, and that the claim for mesne profits was excessive. The Courts below have found for the plaintiff and given him a decree.
3. In second appeal it is contended, on behalf of the defendant No. 1, first, that the present suit is not maintainable, and, secondly, that there cannot be any decree for mesne profits in such a suit.
4. In support of the first contention, the case of Jowahur Misser v. Bhagoo Misser (1857) 13 S.D.A., Part. I, 362, is relied upon. But that case is clearly distinguishable from the present. There, what was claimed was a share in the gratuity or voluntary gift made of certain property to a member of the plaintiff's family as the priest officiating at a sradh ceremony, and the Sudder Dewany Adawlat held that such a claim was not maintainable, because the fee paid was in the nature of a voluntary gift to the person to whom it was directly made. That, however, is not the nature of the present claim. 'What is claimed in the present suit is a right to officiate as shebait or priest, at the worship performed by votaries at the foot of a certain tree, and to share the offerings made at such worship, the right to officiate as such shebait being claimed by the plaintiff as an hereditary right belonging to the members of a certain family of which he himself is a member.
5. A suit for the declaration and enforcement of such a right is in our opinion clearly maintainable having regard to Section 11 of the Code of Civil Procedure, and to the case of Kali Kanta Surma v. Gouri Prosad Surma (1890) I.L.R., 17 Cal., 906, and the cases therein referred to. The suit, therefore, so far as it asks for a declaration of the plaintiff's right, as set out in the plaint, is clearly maintainable.
6. It is then contended that there cannot be any decree for possession. This part of the appellant's contention seems to us to be right, and in fact the correctness of this contention is not disputed on the other side.
7. In support of the second contention of the appellant, it is argued, on the authority of the case of Kashi Chandra Chuckerbutty v. Kailash Chandra Bandopadhya (1899) I.L.R., 26 Cal., 356, that a suit for mesne profits, which consisted in the offerings made to an idol, is not maintainable. But we think the case cited is distinguishable from the present. There the suit was brought against a trespasser, who had kept the rightful owner out of possession for recovery of possession, and for mesne profits, and it was held that no decree for mesne profits could be made owing to the uncertainty of the amount, and owing also to the fact that, in so far as the offerings were intended as voluntary gifts to the person officiating at the time, the plaintiff, even though he was the rightful shebait, could not claim any portion of it. Here the claim strictly speaking is not one for mesne profits in the ordinary sense of the term. It is made, not as against a trespasser, but as against a person who was rightfully in receipt of the offerings as a member of the family to which the plaintiff himself belongs, and the claim is based upon what must have been an implied, if not an express, arrangement among the members of the family, that all the members of the family should have a share in the offerings made to the tree, which were collected by the defendant No. 1. The finding of the Court below, though not very clear, must be taken in substance to be that the offerings were so collected. That being so, the plaintiff would be entitled to his share in the profits made until the parties come to a different arrangement, such as a partition, by performing the worship by turns.
8. Upon the question of the amount of these profits the order of the lower Court is, that it should be determined in execution of the decree. It is very doubtful whether Section 212 of the Code of Civil Procedure is applicable to such a case, and whether the amount can be left to be so ascertained. But it is not necessary to consider this question, as the parties have come to an agreement as to the amount, and they consent to a decree being made for Rs. 60 in respect of the mesne profits up to this day.
9. The result then is that the decrees of the Courts below will be varied by limiting them to a grant of a declaration of the plaintiff's right; and by striking out so much thereof as awards possession, and by substituting for the order for determination of the mesne profits in execution of decree, a decree awarding Rs. 60 as the amount of the mesne profits, leaving the order for costs as it stands in those decrees. In this appeal there will be no order for costs.