M.N. Shukla, J.
1. The Ganga flowsalong vast sandy tracts which humanphilanthropy has dotted with elegant ghats.In the city of Kanpur there is a long beltof land on the bank of the Ganges whichis compendiously known as the GuptarGhat. At present it actually consists offour ghats namely Ram Chandra Ghat,Narain Ghat, Akharha Ghat and BrahmaMandal Ghat. To the south of theseghats is situate bungalow No. 160 whichis now known as the Police D. I. G. (Deputy Inspector General of Police) Bungalow. It appears that in the year 1892there was no regular ghat by the side ofthis land and the land was irregular andkachcha. Gradually ghats sprang up. Thefirst in point of time was the Brahma Mandal Ghat which was constructed pacca bythe Brahma Mandal about 45 years ago.In or about the year 1930 one Asha Ramabuilt another pacca ghat by the side ofBrahma Mandal Ghat which came to beknown as Lala Ram Chandra Ghat. Thenthereafter Akharha Ghat came into existenceand then the defendant Prem Club constructed the pacca ghat known as NarainGhat in the year 1956. Thecontroversy in the suit giving rise tothe present appeal was confined to a portion of the Guptar Ghat known as theNarain Ghat which was originally kachchabut was converted into a pacca ghat bythe defendant.
The plaintiffs Sidh Nath and Ram Dayal claimed themselves to be Ganga Putras and alleged that they sat on the entire Guptar Ghat on the bank of the river Ganges and exercised Brit Jajmani rights by receiving offerings, charities and alms from their Jajmans, that they had their takhats on the entire Guptar Ghat and that they performed Tarpans, Shradhs, special Ganges ... .worship on auspicious occasions such as marriages and Bachhiya Gaudan etc. at the instance of the pilgrims. They asserted that their ancestors were in exclusive possession of the Guptar Ghat and exercised Brit Jajmani rights over it and that their rights had been repeatedly recognised by the civil court as well as the executive authorities. Their grievance, however, was that in the year 1953 the respondent, Prem Club obtained a lease of a portion of the Guptar Ghat now known as Narain Ghat on a nominal lease rent of Rs. 10 per year from the Government and pursuant thereto the respondent had raised a wooden and tin partition near their takhats and further threatened to make permanent constructions and hence the necessity of filing this suit. The reliefs claimed were a permanent injunction restraining the defendant Prem Club, its members etc. from interfering with the plaintiffs' exercise of their Brit Jajmani rights over the entire Guptar Ghat including the disputed Narain Ghat and a mandatory injunction ordering the defendant to remove the partition of wood and tin round their takhats.
2. The respondent denied that the plaintiffs or their ancestors were exercising Brit Jajmani rights over the entire Guptar Ghat including the Narain Ghat. It was pleaded that the plaintiffs and their ancestors used to sit on Ram Chandra Ghat which formed only a portion of the entire Guptar Ghat and it was on Ram Chandra Ghat alone that they were exercising Brit Jajmani rights and had their takhats. The exercise of any such rights on the kachcha Narain Ghat was categorically denied. It was also pleaded that the land in question was acquired by the Government in the year 1949 and the U. P. Government granted to the defendant a lease of the Narain Ghat on the 22nd July, 1953 and consequently whatever rights the plaintiffs had in the said ghat were extinguished. They could, therefore, no more claim any Brit Jajmani rights over the said ghat. The plaintiffs had no right to keep their takhats on the Narain Ghat and receive offerings, charities and alms from the pilgrims. The defendant claimed to be a duly registered society under the Societies Registration Act. The main object of the defendant Club being to encourage and advance the art of swimming, bathing and life saving etc; it claimed to have rendered meritorious service in this direction on several occasions and pleaded that if the plaintiffs were allowed to carry on their activities on the pacca Narain Ghat which had been actually built by the defendant, it was bound to obstruct the discharge of public service by the Club. It was further contended that the plaintiffs' alleged right of Brit Jajmani was akin to begging and hence they could not claim a permanent injunction in respect of the same and the suit was not legally maintainable. The defendant claimed to have constructed of the basis of the lease in its favour a pacca chat (Narain Ghat), a temple and other Buildings at a cost of Rs. 80,000/- or near about.
3. The trial Court came to the conclusion that the plaintiffs had succeeded in establishing their Brit Jajmani and that the acquisition of the ghat by the Government did not destroy those rights. Hence, the plaintiffs' suit was decreed. The lower appellate Court, however, set aside the decree and allowed the respondents' appeal.
4. The main questions which fall for determination in this appeal are:--
1. Whether the plaintiffs have succeeded in establishing Brit Jajmani rights as Stated by them? If it is so established, they would be entitled to restrain the defendant by means of an injunction as prayed. In case such right is not established no relief can be granted to them in this regard.
2. Even if such right is found in the plaintiffs' favour, whether it was extinguished when the Government acquired the ghat in suit?
5. In order to decide the first point which arises in the case the legal incidents of Brit Jajmani rights has to be carefully appreciated. A superficial approach to the problem sometimes leads to the erroneous belief that the distinction between a Brit Jajmani right and what has been described as a mere Man Brit rights lies in the nature of the functions performed or the services rendered by the claimants. Thus, for instance, where offerings received by certain people are dependent only on the compassion or the generosity of bestowers, it is generally considered not a case of Jajmani rights but merely of alms giving in respect of which no suit would be. On the contrary, however, where the activities of those claiming any rights in their favour extend to performing of religious and other like ceremonies such as Tarpans, Shradh and various kinds of charities the nature of such activities is often accepted as conclusive of their giving rise to Brit Jajmani rights. That appears to be the criterion adopted by the lower appellate court in the present case. It laid special emphasis on the fact that what was received by the plaintiffs in the discharge of their offerings was in the nature of alms giving or charity. The learned Judge observed:--
'According to the plaintiffs and the evidence produced in the Court below the plaintiffs had a right of Brit Jajmani from persons who came there and in so far as the act of taking 'dakshna' without any religious ceremony is concerned, it would in my opinion certainly amount to Man Brity and not Brit Jajmani as contemplated in law.'
6. The contention of the learned counsel for the respondent was that the essential difference between Brit Jajmani and Man Brity rights lay not in the nature of functions which might be performed but in the kind of relationship which was created between those rendering the service and those making the offerings etc. I am inclined to accept this submission. It is, therefore, clear that the lower appellate court did not apply the correct criterion in coming to the conclusion as to whether the plaintiffs had succeeded in proving their Brit Jajmani rights or not and the finding recorded by it on that question is, therefore, vitiated and liable to be disturbed in second appeal.
7. In my opinion the basic difference between the two kinds of rights aforesaid lies in the fact as to whether the relationships established between the two parties i. e. those making the gift or offerings etc. and those receiving them shares an element of viability or it is merely of a casual nature. What would be conclusive of the legal character of such activity would be as to whether there is any degree of permanence in the relationship between the two parties so got together. Even though it may not crystallise into a rigid and indissoluble bond yet it may give evidence of a modicum of stability or regularity so as to make it inconsistent with a merely casual or incidental relationship. It would be incorrect to try to fix a test in the nature of the duties performed which may, and, in fact in many cases are, of a similar or allied nature. The performing of certain religious ceremonies or giving offerings may be evidence both where the Brit Jajmani rights exist and where there is only Man Brity i. e. alms-giving. Even though some of these characteristics might overlap what would clearly distinguish the one from the other would be the test as to whether relationship between the two parties is of a tenuous or a comparatively stable character. This is an essential ingredient so far as the legal incidence of Brit Jajmani rights is concerned.
In a Division Bench case of this Court Sarda Kunwar v. Gajanand, AIR 1942 All 320, it was observed by Dar, J. at p. 323 as follows:--
'A Manbrit essentially differs from a Brit Jajmani. In the Manbrit the relation between Jajmani and purohit is a temporary one and there is no fixity or hereditary character about it. But in Brit Jajmani, especially those relating to Hindu pilgrimages like Muttra, Benaras and Allahabad, though it is open to parties to break away the old connexion and establish a new one by custom or usage of the country as a matter of practice and as a general, rule, the connexion between Purohit and Jajmani is both permanent andhereditary. In : AIR1934All851 , which was a suit brought by the son of a Hindu priest at Azamgarh against his father for partition of a joint family property, a question arose whether the two items of property which were purchased by the father from his income as priest should be regarded as an ancestral property or personal property of the father and it was held that they were the personal properly of the father. This was also a case of Manbrit and Sir Shah Sulaiman expressly states that the property in dispute would be the personal property of the father.'
8. It cannot be disputed that whereas the Brit Jajmani right is a right in property and can be legally enforced, a Man Brity is something which falls short of it; it is not a right in property which may be legally enforced. The distinction between Man Brity and Brit Jajmani was also brought out in Ghisibai Mangilal, AIR 1953 Madh. Bha 7 in the following words:--
'Both Yajman Vriti and Man Vriti are offerings made to a Purchit by a devout Hindu on the occasion of his officiating at religious ceremonies and functions. Man Vriti, however, differs in this respect that the relation between a Yajman and Purohit is casual or temporary. There is no fixity of character and in consequence it is not a heritable asset. But a Yajman Vrity creates a permanent relation, which is regarded as a heritable property and some times transferable as well. The right to Yajman Vrity being a right in property which is heritable it is also divisible.'
Thus, it is well established that the right of Brit Jajmani is a right in the property. It is heritable and in some cases even transferable and therefore is legally enforceable.
9. It was contended by the learned counsel for the respondent that the essential characteristic of the activities performed by the plaintiffs in the present case was not that of Brit Jajmani. The element of permanency it was submitted, was conspicuously lacking. Sri Brij Lal Gupta contended on behalf of the defendant that all such services as are rendered by the Ghatias on the bank of the river Ganges which include performing of religious caremonies and which are precisely the activities claimed by the plaintiffs in the instant case are in their very nature transient, not partaking of any degree of permanency. He submitted that the ingredient of Brit Jajmani can be inferred only in cases where there is unmistakable proof of the permanence of relationship such as is typified by the institution of Pandas. The common feature of such Pandas is that they maintain regular books and even account books wherein the names of ancestors of their clients are noted and who can, therefore, claim priority in respect of their descendants. No such claims having been made by the plaintiffs nor any evidence led on their behalf in the instant case, it was urged that their assertion of Brit Jajmani rights was wholly unfounded.
10. The implications of the crucial test laid down in Sarda Kunwar's case AIR 1942 All 320 (supra) are that there are three important characteristics of Brit Jajmani. It can apply in respect of pilgrims who visit sacred places and who employ the services of the same set of people in whose favour rights are alleged to accrue. It is wrong to assume that such rights are confined to great religious centres like Mathura, Varanasi and Allahabad to which there is specific reference in the aforesaid ruling. In my opinion the criterion formulated therein is quite consistent with such rights accruing in respect of those places also which are not acknowledged religious centres and where pilgrims do not necessarily come from out station. The meaning of the word 'pilgrim' according to the Oxford Dictionary is 'one who journeys to sacred places as act of religious devotion.' This visit to a sacred place may be by an alien or by a local inhabitant.
Further, the sacredness of the place may arise either from its being an acknowledged religious centre or from the locality itself somehow acquiring sanctity. Thirdly, the element of permanence in the relationship may be proved either by its extending over generations or by a comparatively short span of time, but there must be evidence of a regular transaction between the local pilgrims and the same set of persons rendering those services. In my opinion all these three material features which would satisfy the crucial test laid down in Sarda Kunwar's case AIR 1942 All 320 (supra), have been proved in the present case by the plaintiffs.
11. Kanpur cannot be bracketed with places like Allahabad, Mathura and Varanasi which are acknowledged religious centres. Nevertheless, it is situated on the bank of river Ganges which according to Hindu standards is hallowed with sanctity, so, the land in dispute can claim proximity to that 'noble river' which 'has held India's heart captive and has drawn uncounted millions to its bank since the dawn of history'. Further, there is abundant evidence led by the plaintiffs for establishing that for over 30 or 40 years members of the public were visiting this ghat for bathing purposes and for performing other important religious ceremonies in which connection services of the plaintiffs as Ganga Putras were employed. Several of the witnesses examined by the plaintiffs were persons who testified to this fact from their personal experience. They had been bathing in the river for a very long period of time and had got the ceremonies performed through the predecessors of the plaintiffs. That in my opinion does establish a sufficiently stable character of relationship between the plaintiffs and the Hindu public.
The concept of Brit Tajmani rights cannot be restricted to the kinds of business performed by Pandas who furnish merely one instance of the exercise of Brit Jajmani which may assume many other forms. As I have already observed, the essential distinction is to be sought not in the nature of activities performed but in the stability of relationship established which might run over generations or may be proved by a consistent course of conduct carried on for an appreciable time. Reference may be made in this connection to the evidence of Ambika Prasad (P. W. 4), Gur Prasad (P. W. 5) and Mool Chand (P. W. 6). I would also like to advert to the admission made by the defendant's own witness Sri Banke Behari, Advocate who stated in unambiguous terms that Sidh Nath was the only Panda of the ghat and that he had seen the plaintiffs alone acting as Ganga Putras to the pilgrims visiting the ghat and assisted them in performing a variety of religious ceremonies. Sri Brij Lal Gupta, learned counsel for the defendant, submitted that it was not open to this Court in second appeal to go behind the finding recorded by the lower appellate court on this issue. But as I have already indicated, the lower appellate Court applied a totally wrong criterion to the question and never recorded a finding that the degree of permanent relationship which was an essence of Brit Jajmani was wanting in the present case. The appraisal of evidence made by it was from an entirely different and wrong angle. That finding is, therefore, not binding on me in second appeal. The Court below does not seem to have taken into consideration the important fact which was established by documentary evidence that On a number of previous occasions such rights were successfully asserted by the plaintiffs. Applying the correct legal test and assessing the evidence in view of that criterion I have no manner of doubt that the plaintiffs have succeeded in establishing Brit Jajmani rights over the disputed Narain Ghat and it would be incorrect to hold that their right was in the nature of Man Brity and hence no legal effect could be given to the same. Thus, the present suit was competent and the plaintiffs were entitled to agitate their rights by filing a suit for injunction.
12. That, however, alone is not sufficient to entitle the plaintiffs to a decree in the instant case. If other circumstances had not supervened so as to jeopardise or undermine the Brit Jajmani rights which the plaintiffs had proved, there have been no difficulty in awarding a decree in the plaintiffs' favour. The question, therefore, arises as to whether on the facts of the present case the plaintiffs are entitled to an injunction claimed against the defendant. The most formidable hurdle which the plaintiffs have to face is the fact of subsequent acquisition of the ghat and the lease granted in the defendant's favour. An attempt was made by the learned counsel for the appellants to contend that the particular site in question namely Narain Ghat was not the subject-matter of acquisition. In my opinion there is no substance in this contention. The fact of acquisition was expressly pleaded in paragraph 26 of the written statement which also mentioned the lease granted by the Government in the defendant's favour. The plaintiffs filed a replication in the present case and paragraph 12 of the same contained a reply to allegations made in paragraphs 21 to 31 of the written statement.
It is curious that there was absolutely no reference to the plea of acquisition which remained uncontroverted in the pleading. The trial Court recorded a finding that the disputed Narain Ghat was acquired by the Government and a lease was also executed in respect of the same in favour of the defendant Prem Club The award Exhibit A-2 dated 22-5-1949 and the lease Exhibit A-3 dated 22-7-1953 are on record. The award recites that the site acquired was situate on the banks of the Ganges and was Nazul land having an area of 5 acres, 1 rood and 10 poles, that there was structures as well as land appurtenant thereto, that the property was held by lessees, that it being Government Nazul land, nothing was paid for proprietary rights of the land. It has been found by the lower appellate Court that the said property had been acquired by the Government. The lease Exhibit A-3 has also been found to relate to land which formed part of the property which was the subject-matter of acquisition. It was leased to the Prem Club for the construction of a pacca ghat and stairs for bathing and swimming and the lessees were enjoined not to use the same for any other purpose than as 'public ghat' and not to restrict the use to the members of the club only. The contention of the appellants was that even assuming that the property in suit had been acquired, it had no effect on the rights which had accrued to the plaintiffs. There are, however, two reasons on account of which I must repel this contention. Firstly, the lease does not reserve the rights of any person who was not party to that document. There is no indication at all that Brit Jajmani rights of the plaintiffs were retained and were not destroyed by the act of acquisition. The lease is the document which reveals the legal character of the property as it emerged after the acquisition made by the Government. The defendant club is entitled by virtue of that lease to carry on its activities enumerated therein and in accordance with the purpose for which it was executed. Clause 3 of the lease deed Exhibit A-3 completely specifies the conditions upon which the lease was granted and it is not possible to go beyond the terms of the lease and to hold that in spite of the acquisition and the lease granted in favour of Prem Club the plaintiff's Brit Jajmani rights remained unimpaired.
13. Yet, another reason why this argument cannot be accepted is that Section 16 of the Land Acquisition Act provides that when the Collector has made an award under Section 11 he may take possession of the land which shall thereupon vest absolutely in the Government, 'free from all encumbrances.' The learned counsel for the appellants has strenuously argued that the Brit Jajmani rights claimed by the plaintiffs are not encumbrances and hence they fall outside the ambit of Section 16. According to the respondent such rights, assuming that they had been acquired by the plaintiffs' were utmost in the nature of customary rights and they were also encumbrances which could not continue to apply to a property after its acquisition. Sri G. P. Bhargava learned counsel for the appellants submitted that the Brit Jajmani rights were neither rights of easement nor customary rights but he was unable to bring them into any other legal category of rights. He vaguely asserted that the Brit Jaimani rights were non-destructible rights which would transcend the limit of encumbrances.
If the legal basis and origin of Brit Jajmani rights is probed it would be evident that they can be acquired either by agreement or lost grant or usage and prescription. In Khushya v. Mangala, 12 All LJ 267 - (AIR 1914 All 37612), it was held that 'jijmam brits,' were a well known form of tenure in this country but where a claim to 'brit jijmani' was put forward, the plaintiff must prove either grant or else some custom or such long-continued possession as raised the presumption of a lost grant. In Buddha v. Balwanta : AIR1958All699 , which also dealt with the Brit Jajmani right of scavenging in the houses situated within specified Mohallas it was held by a Division Bench of this Court as follows:--
'The right of the land claimed by the plaintiff may arise by agreement amongst sweepers defining the areas or houses where each has to render services without being interfered with by 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.'
This shows that the term 'encumbrances' has to be construed in a wide and not in a narrow technical sense. It need not necessarily be in the form of a lease or a mortgage, it includes any right of property which is a burden on the property.
14. In the present case the plaintiffs did not claim either any agreement or lost grant. The averments made in paragraph 3 of the plaint were as follows:--
'In brief the ancestors of the plaintiffs and thereafter the plaintiffs have been performing all functions for Tarpan, Shradha (offering to the departed souls), special Ganges worship on the auspicious occasions of marriages etc. Bachhiya Gaudan, recitals of Satya Narain Katha to Ganges worship devotees, public etc.'.
In substance therefore all that was claimed by the plaintiffs was usage or customary right. It has been held that customary rights as well as rights of easement are embraced within the term 'encumbrances' as used in Section 16 of the Land Acquisition Act and they are extinguished as a result of acquisition. In George High School v. Abdul Karim Khan : AIR1935All895 , it was held by Allsop J. that a customary right as distinguished from an easement was included within the meaning of the word 'encumbrance' in Section 16, Land Acquisition Act and such a right was destroyed by acquisition. In Ganga Vishnu v. M. M. Co. Ltd. : AIR1955Cal503 , it was held that a right of easement whether it belonged to a public or private owner came within the purview of Section 16 of the Land Acquisition Act, it was an encumbrance and came to an end in view of its provisions. The learned counsel for the appellants referred to the order passed by the Nazul Officer Sri S. P. L. Bhatia dated 20-13-1948, Exhibit 11 which directed that even if a lease was granted to the defendant Prem Club of the disputed ghat, it should be noted in the lease deed that the Brit Jajmani rights of Sidh Nath would be left unaffected. However, it is merely a recommendation by the Nazul Officer which was apparently not accepted by the Government inasmuch as it was not incorporated in the lease deed. Therefore, I am of the opinion that even though the plaintiffs had acquired Brit Jajmani rights in respect of the disputed Narain Ghat, those rights were extinguished by the acquisition of the said land by the Government.
15. In the end Sri G. P. Bhargava contended that there was no proof of the fact that the plaintiffs had been paid any compensation in respect of the acquisition and hence their rights could not be destroyed by tie so called acquisition. This argument is wholly untenable in view of the provisions of the Land Acquisition Act, which is a self-contained Code. Section 12 of the Act provides that the award made by the Collector 'shall be final and conclusive evidence as between the Collector and the persons interested, whether they have respectively appeared before the Collector or not, of the true area and value of the land and the apportionment of the compensation among the persons interested.' It is significant that under Section 2 notices are issued by the Collector so that 'claims to compensation for all interested in such land' may be made to him. If a person fails to file an objection or claim and receive compensation, that cannot detract Section 12 of the Act coming into effect. This position is clinched by the provisions of Section 16 of the Act which are to the effect that on the making of the award the Collector may take possession of the land which shall thereupon vest absolutely in the Government. Moreover, Section 18 bf the Land Acquisition Act provides the manner in which the award of a Collector may be challenged by any person interested who has not accepted the award. The plaintiffs or their ancestors or predecessors in interest having never challenged the award, it cannot be challenged in the present proceedings. See Krishna Dei v. G. G. in Council : AIR1950All1 .
16. Lastly, the learned counsel for the appellants submitted that it was manifest from the lease itself that the land in dispute was Nazul land and the Government could not acquire its own property. This argument is utterly misconceived. I have already referred to the award which recites that the Government being the owner of the property no compensation was to be given in respect of the proprietary rights to the property being held by the lessees. It was only the lessee's rights which were being acquired and the legal consequence of the acquisition as contemplated by Section 16 of the Land Acquisition Act was the extinction of Brit Jajmani rights which were on the facts of the case nothing more than customary rights which stood annihilated by the acquisition. In these circumstances the plaintiffs having been stripped off their rights by the act or acquisition at the instance of the Government were not entitled to restrain the defendant by means of an injunction.
17. I, therefore, dismiss this appeal but make no order as to costs. Parties will bear their own costs of this appeal.