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Bhagoji Ganu Raut Vs. Babu Balu Kadam - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case Number Second Appeal No. 694 of 1917
Judge
Reported in(1920)22BOMLR410; 57Ind.Cas.135
AppellantBhagoji Ganu Raut
RespondentBabu Balu Kadam
Excerpt:
.....limits, which, though not defined, are usually well understood and..........sayad ahmed have not been properly understood by the lower appellate court, that the office of a village barber is useful to the village community, that like a village joshi, a village barber may acquire certain customary right to perform services as a barber on ceremonial occasions, and that such a barber would be entitled to the customary, though not necessarily fixed, fees from another barber, who has no right to perform similar services in the said villages, and who has deprived the vatandar barber of his usual fees, by officiating to his detriment.5. on behalf of the respondent it is urged that such a right is incapable of acquisition by custom, that the reason underlying the decisions relating to a village joshi cannot apply and ought not to be applied to a village barber, that.....
Judgment:

Shah, J.

1. The plaintiffs in this case claimed to be the Vatandar barbers of Velaneshwar and five other adjoining villages and as such claimed the exclusive right to officiate as barbers on ceremonial occasions in those villages. They sued the defendant for an injunction and damages in consequence of his having rendered services as a barber on some ceremonial occasion to certain Bhandaris on the 11th March 1915.

2. The defendant denied the exclusive right of the plaintiffs to officiate on all ceremonial occasions and claimed to be a Vatandar barber himself in the said villages.

3. The trial Court found all the issues, except one relating to injunction, in favour of the plaintiffs and passed a decree in their favour for damages.

4. The defendant appealed to the District Court and the plaintiffs filed cross-objections. The learned Assistant Judge, who heard the appeal, held that the suit was maintainable and that the plaintiffs were Vatandar barbers. He held, however, that the expression 'Vatandar barbers' did not carry with it any rights and that the plaintiffs had no right to require the Bhandaris to get the Jcahaura done by them and that the defendant was not liable for damages. He purported to follow the test laid down in Muhammad Yussub v. Say ad Ahmed (1861) 1 B.H.C.R. 18. The plaintiffs' suit was accordingly dismissed. The plaintiffs have appealed to this Court, and it is urged on their behalf that on the finding of the lower appellate Court the plaintiffs' claim for damages ought to be allowed, that the observations in Muhammad Yussub v. Sayad Ahmed have not been properly understood by the lower appellate Court, that the office of a village barber is useful to the village community, that like a village Joshi, a village barber may acquire certain customary right to perform services as a barber on ceremonial occasions, and that such a barber would be entitled to the customary, though not necessarily fixed, fees from another barber, who has no right to perform similar services in the said villages, and who has deprived the Vatandar barber of his usual fees, by officiating to his detriment.

5. On behalf of the respondent it is urged that such a right is incapable of acquisition by custom, that the reason underlying the decisions relating to a Village Joshi cannot apply and ought not to be applied to a village barber, that the payments made on ceremonial occasions to the barber are mere gratuities and not fixed fees, and that the test laid down in Muhammad Yussub's case has been correctly applied by the lower appellate Court.

6. Apart from the findings of fact recorded by the lower appellate Court the respondent's contentions would have considerable force. In the present case it is found that the plaintiffs are Vatandar barbers, and that the defendant is not a Vatandar barber, though he claimed to be one, in respect of the villages in question. The lower appellate Court observes that 'the conclusion from the whole evidence is that it is customary to recognise the right of a Vatandar barber to do service for his customers'. The finding derives considerable support from the defence raised by the defendant that he himself had such a right in common with the plaintiffs. I do not see any sufficient reason not to accept this finding. On the basis of this finding, it is difficult to distinguish the case of a village barber from that of a village Joshi. The right of a village Joshi to officiate and to receive the customary dues on all ceremonial occasions has been recognised in this Presidency : see Vithal Krishna Joshi v. Anant Ramchandram (1874) 11 B.H.C.R. 6 and Raja Shivapa v. Kriahnabhat ILR (1879) 3 Bom. 232. It is true that the right of a village barber has not been similarly affirmed in any reported case. The learned pleaders in the case have not been able to draw our attention to any precedent in favour of such recognition, and I am not aware of any. It is quite possible that the Vafcandar barbers with a right to officiate do not exist in the Presidency to the same extent as the hereditary village Joshis, and that may be a possible explanation of the absence of any precedent on the point. However that may be, we have to consider the question on its own merits.

7. In view of the finding that the plaintiffs are entitled to officiate on ceremonial occasions by custom, I do not see any sufficient ground to refuse to recognise their right. It is a customary right, which is not in any sense opposed to public policy, and it is not suggested in the argument that it is opposed to public policy. It is not unreasonable; and a barber is one of the recognised village servants, who are useful to the village community. It may be that his services are not religious in the sense that a village Joshi's services are. But' the services of a barber may be essential on ceremonial occasions, and may form part of the religious ceremonies taken as a whole. I am, therefore, of opinion that there is no sufficient reason not to give effect to the finding of the lower appellate Court.

8. I am unable to agree with the lower appellate; Court that the payments made by the barber for his services on ceremonial occasions are mere gratuities. They are customary payments for services though they may not be fixed. As pointed out in Vithal v. Anant they need not be fixed. They may vary within certain limits, which, though not defined, are usually well understood and recognised. The trial Court refused to grant any injunction but allowed relief to the plaintiffs on the lines accepted in the decisions relating to the village Joshia. I think that under the circumstances, that was the proper decree.

9. I would, therefore, reverse the decree of the lower appellate Court and resure that of the trial Court with costs in this Court on the respondent. Each party to bear his own costs in the lower appellate Court.

Crump, J.

10. I concur.


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