- (1.) THIS is a second appeal by the plaintiff for modification of the decree of the lower court. The defendants have filed cross-objections for setting aside the decree.
(2.) THE appellant Suraj Narain instituted a suit in the court of Civil Judge, Jaipur District, on 4-3-1948, against Debi Narain and his three brothers Ganesh Narain, Suraj Narain and Chandmal, on the allegation that there was temple of Shri Sita Ramji at Jhontwara along with a Nohara attached thereto, of which the plaintiff on the one hand and the defendants on the other were joint owners. THE plaintiff claimed a half share, and partition of the temple and the Nohara. He, also claimed Rs. 558/- as mesne profits, arising out of the leasing of the Nohara and the shops under it, and which the defendants were said to have realised for themselves. The defendants pleaded that the temple Was not partible and the Nohara was not the temple property. It was pleaded that the plaintiff on the one hand and the defendants on the other did sewapuja of the temple by rotation of one year. The claim to mesne profits was also denied. The trial court after evidence, came to conclusion that the temple was not partible property and the parties were not owners, thereof, and that the Nohara was the property of the temple. The court declared each party to be entitled to Sewapuja of the temple by turns every alternate year, defendants' Osra or the turn of worship to begin from Phalgun Budi 1st Samwat 2006. The claim as to mesne profits was dismissed on the ground that the plaintiff had not proved what income had been realised by the defendants. Both the parties filed appeals, the plaintiff claiming the mesne profits and the defendants challenging the fixing of Osras. Both the appeals were dismissed. The plaintiff has come in second appeal. The defendants did not file any second appeal but preferred cross-objections, and prayed that the decree as passed by the trial court should be set aside. As to the plaintiffs' appeal. The finding that the temple was not partible and that the Nohara was a temple property is not challenged. The suit was originally instituted on a claim that the temple and the Nohara were jointly owned by the parties. That claim was not maintainable. The plaintiffs, therefore, cannot claim mesne profits, i. e. , profits to which he was entitled but was wrongly kept out by the defendants. He could have claimed the income of the property of the temple, if he would have alleged that he did Sewapuja, and was out of pocket on that account, and now required to be reimbursed from the income of the temple property. He claimed the mesne profits for three years prior to the suit, but did not allege that in any portion of that period he did the Sewapuja, while the income of the temple was received by the defendants. The plaintiffs' claim obviously is not maintainable in the circumstances. The plaintiff's appeal is accordingly dismissed with costs. As to the cross-objections. The cross-objections can only lie in respect of the decree against which the appeal has been filed in this Court, The plaintiff filed an appeal against the decree of the lower court disallowing his claim for mesne profits. The appellate decree was entirely in favour of the defendants. Therefore, there can be no cross-objection with reference to the appeal that has been filed by the plaintiff in this Court. What the defendants now seek to challenge by cross objection is that portion of the decree of the trial court which went against them. Against that portion of the decree they filed an appeal, and they could have filed a second appeal. The cross objections are, therefore, not maintainable, and are accordingly dismissed. This objection was not taken by the plaintiff and, therefore, he will not get costs in respect of the dismissal of the cross objections. .;