A.P. Srivastava, J.
1. This first appeal from order arises out of a suit to recover rent. The plaintiff claimed that his father had lent Rs. 417/- to two persons Lohery and Chotey Lal and had obtained from them as security for the debt a usufructuary mortgage in respect of some birt khakrobi rights which the two persons Posessed. On the same date the two persons had taken a lease of the birt kha-krobi rights by executing a qabuliyat in favour of the plaintiff's father. By the qabuliyat the executants purported to take the property on lease for a fixed period of three years.
After the death of his father the plaintiff succeeded to the mortgagee rights and became the landlord in respect of the lease. Lohery, one of the mortgagors and executant of the qabuliyat, having died was succeeded by the defendants Nos. 1 and 2. The Plaintiff further alleged that the rent had been paid by the defendants up to the 7th February, 1934, and that they had not paid any rent thereafter. He, therefore, sued to recover Rs. 306/- as rent for the past six years. The rate of rent agreed upon was Rs. 4/4/- per month.
2. The suit was contested on various grounds. It was pleaded inter alia, that birt khakorbi was not a property which could be made the subject of a mortgage or lease, that the original debt hadbeen satisfied and that the defendants were not in possession as tenants.
3. The trial Court held that the mortgage was valid and that the defendants were tenants of the birt khakrobi rights. It did not accept the plea that mortgage debt had been satisfied. It, however, dismissed the suit on the ground that it was barred by Article 139 of the Limitation Act. The plaintiff went up in appeal to the Civil Judge who thought that as the qabuliyat relied upon by the plaintiff had not been executed by the landlord also it could create a valid tenancy in favour of the defendants.
The relationship between the Parties was, therefore, not that of a landlord and tenant but of a licensor and licensee. The plaintiff could not, therefore claim any rent. The licence having come to an end with the death of the licensor the plaintiff could claim damages for use and occupation. He did not record any specific finding on the question whether birt khakrobi was transferable but appears to have tacitly accepted the view of the learned Munsif on that point.
As in his opinion the case had not been properly considered from the point of view of the relationship between the parties being one of a licensor and a licensee and the Plaintiff's right td claim damages for use and occupation had not been dealt with, he set aside the order dismissing the suit and sent the case back to the learned Munsif for being decided according to law. It was left open to the learned Munsif to frame any such further issues as he thought necessary and the parties were declared entitled to produce further evidence.
4. Against the order of remand the present appeal has been filed and two contentions have been pressed on behalf of the appellants. The first is that the learned Munsif had rightly held that the suit was barred by Article 139 of the Limitation Act and the appellate Court was incorrect in upsetting that finding. The argument in support of this contention is that no rent having been paid after 1934 the tenancy came to an end.
The defendants had never taken any license from the plaintiff or his father. There could, therefore, be no question of the plaintiff's recovering any amount from the defendants either as rent or as damages for use and occupation. The other contention is that in any case the birt khakrobi rights were not transferable and could neither be mortgaged nor leased out. The lease being invalid no rent could be claimed from the defendants on its basis.
5. It does not appear to be necessary to consider the first contention because the second one appears to be well founded. It may, however be mentioned in connection with the first point that the present suit was a suit for the recovery of rent only. It was not a suit for possession. Article 139 of the Limitation Act by its very terms, applies only to a suit for possession and not to a suit for recovery of money.
6. It was specifically pleaded by the defendants that the birt khakrobi right which the plaintiff claimed had been taken on lease by the defendants was not property which could be let outand that the lease relied upon was void in view of Section 6 of the Transfer of Property Act. The learned Munsif held that as in Sukh Lal v. Bis-hambhar, ILR 39 All 196 : (AIR 1917 All 115) it has been held that Mahabrahmini birt could be subject of a mortgage it could be held by analogy that birt khakrobi was also similarly transferable-If it was capable of being mortgaged it was also capable of being leased. The learned Civil Judge did not consider the point specifically but there is nothing in his judgment to show that he differed from the view taken by the learned Munsif on the point.
7. As has been laid down by a Division Bench of this Court in the case of Buddha v. Balwanta : AIR1958All699 , where the question relates to birt jijmani in respect of scavenging rights the origin of the right has to be traced. The right could have originated either in an agreement between the sweepers amongst themselves or in a grant, usage or Prescription. Till the origin of the right was known it could not be possible to determine the incidents of that right and the extent to which it was enforceable or transferable.
In the present case unfortunately no evidence appears to have been led to show how the birt khakrobi right which was made the subject-matter of mortgage and lease in this case had really originated. There is no evidence on the record to show that it was based on any custom, grant or agreement. There is also no evidence to show that there was any custom recognising the right as a transferable right or as a right in immovable property. There was, therefore, no basis on which the right could be held to be transferable.
8. The ease of ILR 39 All 196 : (AIR 1917 All 115) (Supra) could not afford any analogy to the present case. That case related to a mortgage of Mahabrahmini birt by one Mahabrahmin in favour of another. The transfer was held to be valid because it was noted that under Hindu Law the right of Mahabrahmini birt jijmani ranked as immovable property. It was also noticed that the transfer had in that case been by a Mahabrahmin in favour of another Mahabrahmin.
There is nothing to show that the khakrobi birt, the subject-matter of dispute in the present case, has ever been regarded as property under Hindu Law or under any other law or custom. It can also not be overlooked that the transferors in the present case were sweepers but the person in whose favour the transfer was made was not a sweeper. He was a Mahajan. It is, therefore, difficult to agree with the view that the birt khakrobi right in dispute in the Present case was transferable as it was similar to Mahabrahmini birt jijmani.
9. In respect of birt khakrobi rights there is authority to the effect that it is not transferable. In P. Raghudu v. N. Erraiva AIR 1938 Mad 881 a learned Judge of the Madras High Court refused to recognise a custom obtaining among scavenger commnuity in Madras allowing them a right to do scavenging work to the exclusion of others and to sell or mortgage the right. It was observed:
'The right that is claimed is, therefore, in substance a right to prevent a man from pursuing his legitimate calling. The general principle is that the law will not permit any one to restrain a person from doing what the public welfare and his own interest requires that he should do ......
It is well settled principle that any custom which is contrary to public good and operates to the prejudice of the many and beneficial only to a particular individual is prima facie unreasonable and cannot be enforced by any Court of law.'
This case was followed with approval in Radhya v. Kamraya, AIR 1951 Madh Bha 120. This Court in the case of Durga Prasad v. Shambhu, ILR 41 All 656 : (AIR 1919 All 208) held in respect of Mahabrahmini rights also that they could not be attached or sold under Section 60 C. P. C.
10. It, therefore, appears to me that the property which the plaintiff claimed to have let out to the defendants and in respect of which the plaintiff claimed rent was really not transferable and could not be made the subject-matter of a valid lease. If it could not be made the subject matter of a valid lease there could be no question of claiming any rent. The plaintiffs suit was, therefore, liable to be dismissed though on a ground different from one on wihch it had been dismissed by the learned Munsif. As the suit was not maintainable the order of remand cannot be upheld.
11. The appeal is in the result allowed. The order under appeal is set aside. The suit of the plaintiff shall stand dismissed with costs in all the courts.