1. This is a second appeal by the defendants who are sweepers of a village called Karanbas against a declaration which has been granted by the lower Appellate Court. The plaintiffs are sweepers of Mauza Debai and they sue for a declaration that they were entitled to the exclusion of the defendants to take the coffins and ornaments of corpses of Hindus who lived in Mauza Debai and whose bodies were buried or cremated at the burning ghat in Karanbas. The defendants, on the other hand, alleged in a written statement that inasmuch as the cremation ghats at Karanbas fell in their circle therefore they were entitled to the coffins, etc. of the dead bodies of Hindus of Mauza Debai which were burnt at those cremation ghats. Both parties therefore set up an exclusive custom. The trial Court dismissed the suit holding that the custom was not proved and the lower Appellate Court has decreed it for a modified declaration to the effect
that the sweepers of Debai are entitled to take the coffins and other things placed on the dead, bodies of the Hindus of Debai that are burnt in Karanbas and Belauna Rup.... Defendants are hereby restrained from interfering 'with the plaintiff's right as mentioned above.
2. The plaintiffs produced eight witnesses from their village and the defendants produced five witnesses from their village. The evidence for the plaintiff was that persona who died in Mauza Debai were always accompanied by sweepers from Mauza Debai and that these sweepers performed the ceremony of lighting the funeral pyre at this ghat in Mauza Karanbas. It is to be noted that the lower Appellate Court does not record any finding that there was no right of a Hindu living in Mauza Debai to employ the sweepers of Mauza Karanbas if he chose to do so. It appears to me therefore that the case is really one of contract and that there is nothing to prevent a Hindu of Mauza Debai making a contract with the sweepers of Mauza Karanbas if he desires to do so. The mere fact that the Hindus of Mauza Debai always have employed the sweepers of that village does not establish any binding custom that every Hindu of Mauza Debai must follow. For example persons living in Allahabad always employ tonga drivers or ekka drivers who are in Allahabad but the fact that this is done would not prevent any resident of Allahabad sending for a tonga from somewhere else if he desired to have one, provided there was no question of municipal license. Learned counsel for the appellants has referred to certain rulings. One of those is Channu Dat v. Babu Nandan (1910) 32 All 527. The plaintiff sued for a declaration that he had a right to perform certain religious pageants in Benares and to receive subscriptions and claimed an injunction to restrain the defendant from interfering with that right. It was found that the plaintiff's father, grandfather and great-grand father had per-formed these pageants for many years with the aid of voluntary subscriptions from the Hindu community. The Court held that the performances were purely voluntary and that the plaintiff's suit would not lie. In Bansi v. Kanhaiya (1921) 8 AIR All 374 the plaintiffs were Mahabrahmans and the defendants were Gangaputras. The dispute related to certain gifts which were made by pious Hindus who came to bathe at a spot of the Ganges called the Kubrighat. The plaintiffs alleged that the defendants interfered with their right to receive alms which the plaintiffs and their ancestors had received for 150 years and that the plaintiffs asked for a declaration of their right and an injunction restraining the defendants from interfering with that right. It was held that the plaintiffs had no legal status within the meaning of Section 42, Specific Relief Act, being in fact mere beggars who filled no legal character entitling them to the declaration asked and that their claim to receive alms was not a right to property which would entitle them to claim an injunction in regard to it. In Hira Pandey v. Bachu Pandey (1916) 3 AIR Pat 215 there was a case brought by a priest of the town of Bankipore alleging that he had by custom a right to officiate at all funeral ceremonies performed on the banks of the Ganges between certain definite points. It was held that such a suit was not maintainable.
3. It appears to me that in the present case the matter is really one for the relatives of a deceased Hindu in Mauza Debai to make whatever arrangement they please and that the plaintiffs have no legal right to interfere with that freedom of contract by the relatives of the deceased. On the other hand, the sweepers of Mauza Karanbas and Mauza Belauna Rup have no right to interfere with any such arrangement made by the relatives of a deceased Hindu in Mauza Debai. The sweepers of Mauza Karanbas and Mauza Balauna Rup have no right in the zamindari of those villages or of the burning ghat in question. As the defendants have claimed an exclusive right, and have interfered with the taking of coffins and ornaments by the sweepers of Mauza Debai who came to the burning ghat under arrangements with the relatives of the deceased Hindus of Mauza Debai, it is necessary that some form of declaration should be granted to the plaintiffs. Accordingly I set aside the declaration which has been granted by the Court below and I grant a declaration that if Hindus employ sweepers of Mauza Debai those sweepers may go to the burning ghat in Karanbas and Belauna Rup and take the coffin and ornaments if given to them by the relatives of the deceased Hindu, and the defendants are not entitled to interfere with the sweepers of Mauza Debai in this matter. I also grant an injunction against the defendants from interfering with the exercise of this right of contract by the plaintiffs. Under the circumstances I direct that each party shall pay their own costs throughout.