1. This case has come up before this Bench as a result of the following order of reference by Mithan Lal, J. in asecond appeal.
'I, therefore, direct that this case be laid before the Hon'ble the Chief Justice for constituting a larger bench to decide this appeal which involves only one question and no other, i.e. whether the right of Brit Khakrobi is enforceable in a Court of law, when its origin is not given.'
The second appeal arose out of a suit for possession and injunction in respect of alleged Brit Khakrobi and recovery of a sum of Rs. 84/- as mesne profits for a period or six months. The parties are sweepers. The case of the plaintiff-respondent No. 1, hereinafter called the respondent No. 1, was that he and his ancestors were owners ofBrit Khakrobi, i.e. the right to earn money by scavengingthe houses in a certain part of Chandausi town, and thatthe defendants started interference with the plaintiff's possession about six months before the institution of the suit. The defendants contested the suit on the ground that the respondent No. 1 was not the owner of Brit Khakrobi and had not been in possession of it and that defendants, appellants Nos. 2 and 3, hereinafter called the appellants, were the owners and in possession of the right and that defendant No. 1 who is respondent No. 2, has been unnecessarily impleaded.
2. Both the courts below found that the plaintiff was the owner of the alleged Brit right. The trial court dismissed the suit holding that the plaintiff had failed to prove his possession within 12 years before the institution of the suit. The lower appellate Court held otherwise and decreed the suit.
3. In second appeal pearey and Lakhan, appellants, challenged the findings of the Court below and at the timeof arguments raised the legal plea that the right was not enforceable when the origin had not been given. The contention of the learned counsel for the respondent that the plea should not be allowed to be raised at the time of the arguments was rightly repelled by the learned single judge who allowed the legal plea to be raised. The second contention of the learned counsel for the respondent was that since the defendants had claimed a similar right or Brit Khakrobi in the locality in dispute the question of the origin of the rights did not arise. The learned counsel for the appellants on the other hand relied upon the Division Bench decisions of this Court in Buddha v. Balwanta : AIR1958All699 and Lachman v. Bhajan 0065/1928 : AIR1928All389 and contended that merely because of theclaim of the defendants that they were themselves theowners of the Brit Khakrobi in the locality in dispute thedenial of plaintiff's right will not lose effect and the suit could not be decreed unless the origin of the Brit claimed by the plaintiff was given. The learned single Judge thought that both the cases were distinguishable out in view of some general observations made by the Division Bench in : AIR1958All699 referred the appeal for deci-sion by a larger Bench.
4. It is clear from a study of paras Nos. 1 to 3 of the plaint that the plaintiff did not allege eiher a grant or a custom or a long and uninterrupted usage which would suffice to establish either a lost grant or an exciusive prescriptive right. He mainly asserted that he and before him his father Ghasi and aunt Smt. Boni were owners of Brit Khakrobi and in possession of the right in the locality in dispute and that the matter had been settled by a panchayat. In evidence also the plaintiff mainly relied on the decision of a caste panchayat dated 28-8-1907 in a dispute between the plaintiff's father and aunt, Ghasi and Smt. Boni, on the one hand and Gangu, father of defendant No. 1, who is now respondent No. 2, on the other. me panchayat's award (Ext. 8) was that the right of Khakrobi of the ginning factory called the Pech and the eastern part of the road would belong to Ghasi and Smt. Boni and that of the western part of the road to Gangu. The appellants' father or the appellants were no parties to the dispute. Nor was the award signed by them as witnesses or in any other capacity. Nor was it incorporated in any decree of the Court. It was admitted in evidence under Sec. 13 of the Evidence Act by both the Courts below. Ghasi died about 23 or 24 years back and Smt. bONI about 22 or 23 years back. The ginning factory itself was found by the learned Iower Court to have closed down in the year 1940, and the locality remained uninhabited till 1950 when certain displaced persons from Punjab came to live there and built houses. The learned lower Court founo that it was then that the respondents started scavenging these houses there and the suit was filed by respondent No. 1 in 1951. P. W. 1, who is the plaintiff himself, deposed regarding the exercise of the right by the plaintiffs father until his death and thereafter for 10 or 12 years before the closure of the factory by one Jaharia on behalf of the plaintiff. The other two witnesses P. W. 2 and 3 were unable to say who was doing the scavenging work in the ginning factory at the time of its closure. It Is clear that there are neither any pleadings nor any evidence on record to show the origin of the alleged right or any long and uninterrupted usage so as to raise the presumption of a lost grant or some custom coming from times immemorial.
5. In Ramaswamy Aiyan v. Venkata Achari, 9 Moo Ind App 344 (348) (PC) their Lordships ot the Judicial committee considered the claim of the right of administering Purohitam to pilgrims resorting to Rameshwaram. After a discussion of evidence from the Puranas, agreements, grants, decrees and proceedings of Courts, their Lordships observed:
'Upon the whole it is their Lordships' opinion tnatthe evidence, though it may establish that the Arya community has existed as part, and a principal part, of theHierarchy of this Pagoda and its dependencies from a periodot remote antiquity, and that the Appellants may be takento be the actual representatives of that community, fallsto show, either by documentary proof of its origin, or bysuch proof of long and uninterrupted usage as in theabsence of a documentary title will suffice to establish aprescriptive right, the existence at any time of the originaland exclusive privilege which the Appellants have madethe condition of their title.'
6. It will be apparent from the judgment that the defendant respondents' plea in that case also was that they were 'invested with the privilege of administering Purohitam to pilgrims resorting to Rameswaram' and that they 'afterwards from generations to generations enjoyed this privilege and the emoluments resulting from its exercise. . . .'
7. Thus in that case also the right or the privilege was claimed by the rival parties end yet it was not taken to amount to an admission by the defendants of the existence of the Brit or the right or the privilege as sucn so as to obviate the necessity of establishing the exclusive right of the plaintiff by proof of origin or long and uninterrupted usage. Their Lordships of the Judicial committee accordingly dismissed the plaintiffs' suit.
8. The question involved in trip present case came up before this Court also in a number of cases. In Khushya v. Mangala AIR 1914 All 376 some sweepers alleging themselves to be britdars entitled to sweep a particular locality sued other sweepers for possession of that rignt. What the plaintiffs-respondents claimed in that case was the right and possession over one-half of the brit jarobkashi in the entire mauza of Tundli. Speaking of brit jarob-kashiRyves, J. said
'I cannot find the term jarob-kashi in Pallon's Dic-tionary, but it seems to be a somewhat granditoquently coined word to express the ordinary services performed py sweepers.'
In that case also the ruling reported in 9 Moo Ind App 344 (PC) was quoted and followed. Although that suit had been dismissed by the trial Court, the lower appellateCourt had decreed it holding that the brit jarob-kashi of Tundli bazar belonged to the plaintiffs and that they had been in possession within 12 years. Ryves, J. observed as follows:--
'I do not think it can be held that the plaintiffs of their father had ever acquired any brit at ail. They have not attempted to show its origin and on their own showing they have not been performing the service for many years. I hold there is no evidence on the record which could legally enable the lower Court to hold that the predecessors of the plaintiffs were britdars as that term is undersood in law.'
The appeal was accordingly allowed and the suit dismissed and the decree of the first Court restored. In that case also the defendants had claimed the right in themselves saying that for the last 60 years they and their ancestors had been employed as sweepers. It was held-
'In all these cases where such a claim is put forward it seems to me that the plaintiff must prove either a grant or else some custom or such long continued possession as raises the presumption of a lost grant.'
9. In 0065/1928 : AIR1928All389 (Supra). It was held that except possibly in cases where the right can be traced to a grant of an irrevocable character by the owner of a house, or to usage or prescription proved by evidence to be binding on the owner of the house the right of brit Jajmani to sweep though enforceable between the rival claimants cannot prevail against the wishes of the owner, and the relief of injunction can be granted to one claimant against the other only where it is a matter or indifference to the owner as to who renders services to him on payment of remuneration which he is willing tooffer. In this case also the two decisions mentioned above, i.e., the first of the Judicial Committee and theother of the Allahabad High Court were followed. It is true that in the body of the judgment a reference is made to the desire of the Manager of the Dharamshala as representing the owner thereof to engage the services of the defendant in preference to the pliantiffs. The contention or the learned counsel tor the respondent is that this reference was the real reason for the dismissal of the plaintiffs' claim in that case and that the enforceability of the right as between the sweepers was recognised by the Court. This contention is without force. It was clearly brought out in that decision that the brit right of the kind claimed by the plaintiffs might arise in the following various ways:--
(1) By agreement among sweepers defining the areas of houses where each is to render services without interference by the others.
(2) Such a right may also be acquired by grant.
(3) Usage and prescription may also be the source oi sucn a right.
10. The second and the third class may bind the owners but the first one will not. It was held in that case that there was no evidence whatsoever which could be relied on as proof of a right of such a far-reaching character, that it pointed to a plaintiff's right having its origin in agreement among sweepers which is lost in antiquity and which is now evidenced by the usage prevailing among the local sweepers. The plaintiff's appeal was accordingly dismissed. The case was decided on the facts of that case and the Court emphasised that whatever the force of the agreement might be as between the sweepers it could not prevail against the owners. The Court held that the relief could be granted to one claimant against another
' 'Only where it was a matter of indifference to theowner as to who renders services to him on payment ofremuneration which he is willing to offer.''
(The underlining (here into ' ') is ours).
11. Such an indifference must be established and cannot be presumed when no notice of the claim was given to the owners. The scavenging of a house is a matter of daily service and involves the question of the performance of the service to the satisfaction of the owner and also a regular payment of the remuneration which the owner or occu-pant of the house is willing to offer. In that case also Sen and Niamatullah, JJ. observed:
'In practice it is seldom that a grant or usage and prescription binding on the owner of a house can be estab-lished. It is unnecessary to speculate and to illustrate, cases in which the owner can be considered bound to recognize the brit jaimani rights of menial classas. It is enough for purposes of this case to say that there is no evidence whatever which can be relied on in proof of a right of such a far-reaching character.'
If, however, the decision in Lachman's case 0065/1928 : AIR1928All389 is stretched to lay down that such a claim on the basis of an agreement between sweepers is enforceable even when the wishes of the owners are not Known and proved we are, with due respect to the learned Judges who decided that case, unable to agree with that view.
12. Moreover, even in the present case the displaced persons who have inhabited the locality have actually engaged the appellants as their sweepers and have thus by conduct expressed a desire for services of the appellants.
13. In : AIR1958All699 the Division Bench, of which one of us (Takru, J.) was a member, held that -
'The exclusive right to serve for remuneration in houses situated within specified mohallas may arise by agreement amongst sweepers defining the areas or houses where each has to render services without being interfered with by the others, in which case the parties to such an agreement can enforce it as between themselves. It cannot, however, afford protection against interference by third persons. Such right may also be acquired by grant by which owners of particular houses may confer the exclusive privilege of serving in that capacity to the exclusion of all others following the same vocation. Usage and prescription may also be the source of such a right.'
14. It was further held-
'where the right cannot possibly be traced to a grant of an irrevocable character by the owner of the houses or to usage and prescription proved fry evidence to be binding on the owners of the house, the right of brit Jaimani through enforceable between the rival claimants cannot prevail against the wishes of the owner. A voluntary consent of the people to the employment of the plaintiff or his predecessor as scavengers cannot confer upon them any exclusive right and the continuance of this state of things even for generations cannot confer upon the plaintiffs a legally enforceable right.'
15. After referring to the cases reported in Raghuou v. Erraiya AIR 1938 Mad 881 0065/1928 : AIR1928All389 and Gourmoni Debi v. Chairman of Panihati Municipality, 12 Cal L. J. 74 it was further observed that the right of brit-jajmani of the nature claimed by the plaintiff apart from the question that it cannot prevail upon the wishes of the owner cannot be made the foundation of a claim against the defendants who according to the plaintiff's own case had been exercising it tor well nigh five years when the suit was heard by the Munsif.
16. The mere fact that the right was exercised for a period of six months prior to the institution of the suit when the locality was again inhabited and not for a period of five years will not matter for both the periods are wen within 12 years. There is nothing to show that brit-khakrobi stands on the same footing as brit-mahabrahmini, which is a right ranking as immoveable property under Hindu Law. Nor is there anything to show that the brit-khakrobi claimed in this case has ever been recognised as property upon Hindu Law or under any other law or custom. Consequently, it was necessary to establish by pleadings and evidence the incidence, the extent and the nature of the right claimed before it could be said to be enforceable. The mere use of high sounding words, like brit-khakrobi, is not sufficient. In a claim in respect of the alleged brit in respect of scavenging rights it is necessary to establish by evidence its origin or a long and uninterrupted usage. For the basis of the claim may be either an agreement or a lost grant from the owners or a long and uninterrupted usage so as to raise a presumption of lost grant. It is only when the incidence, the extent and the nature of the right claimed are established by evidence that such a right can be held to be enforceable. It is well settled that no Court can enforce an agreement between two parties involving we rights of a third party unless it is established that it is con-sented to or is a matter of indifference to that party. Nor can a decision of a panchayat between two parties have any effect on the rights of those who were no parties to the panchayat. We agree with the view taken in : AIR1958All699 (supra). In the prssent case there was not even an agreement between the appellants or their predecessors and the respondent No. 1 and his predecessors.
17. In Dhandu v. Girdhari Lal : AIR1961All518 where the question whether the right was not transferableand could not be vaiidly leased, it was similarly held that in the absence of any evidence to show that brit-khakrobi right had been based on any custom, grant or agreement and that there is any custom recognising the right in immoveable property such right cannot be held to be transferable and cannot be made the subject-matter of a valid lease. In that case also it was held that till the origin of the right was known it could not be possible to determine the incidence of that right and the extent to which it was enfor-ceable or transferable.
18. The scavenging right also came up tor consideration in AIR 1938 Mad 881 (Supra), where the Madras High Court referred to recognise a custom allowing a particular scavenger community in Madras to do the scavenging work to the exclusion of others. Venkataramana Rao, J. observed:--
'The law will not permit anyone to restrain a person from doing what the public welfare and his own necessity requires that he should do, and any restriction which is sought to be imposed on a man pursuing his legitimate caning will always be considered to be Sub-sectionegal unless it is brought within any of the recognized exceptions known to law.'
In that case it was contended that the claim of the plaintiff was based on custom and was consequently sustainable. Venkataramana Rao, J. held that:--
'It is a well settled principle that any custom which is contrary to public act and operates to the prejudice of the many and beneficial only to a particular individual is unreasonable and cannot be enforced by any Court of law.'
The Madhya Bharat High Court followed his decision in Radhy v. Kamraya AIR 1951 Madh B. 120.
19. It is not necessary to consider the question of custom in the present case, because no custom has been pleaded or established. There is, however, no doubt that such restrictions as are claimed by the plaintiff in the present case on the rights of others cannot be enforced unless the origin by way of a grant or a lost grant or custom or a long and uninterrupted usage to the exclusion of the others has been established, and the mere fact tnat the defendants themselves claimed to have been exercising that right for a long time will not create any difference. The suit of respondent No. 1 must, therefore, fail as the origin or long and uninterrupted usage to the exclusion of the others was not pleaded and proved.
20. In view of this, it is not necessary, to go into the appellant's plea of limitation.
21. The appeal is accordingly allowed and the decree of the Court below is set aside and the suit of the plaintiff dismissed with costs throughout.