D.N. Roy, J.
1. The parties to this case are Lal Begis or sweepers, residing in the town of Fatehabad in District Agra. The plaintiff-respondent Balwanta brought the suit out of which this second Appeal has arisen for possession over birt rights in certain houses, situated in Mohalla Parihar, Mohalla Purani Mandi, Mohalla Ghalla Mandi, Mohalla Rajput and Mohalla Kurhana within the town area of Fatehabad, and for recovery of certain sum as damages together with pendente lite and future damages upto the date of possession at the rate of Re. 1/- a day.
The right claimed, as we understand it meant that the plaintiff has the exclusive right to serve for remuneration in the houses specified in the plaint and situated within those mohallas. It is not clear from the plaint as to what origin is assigned to the plaintiff's rights. His case, as stated in the plaint, is that the houses have been the birt property of the plaintiff, and that in the year 1938 that right had been recognised in suit No. 149 of 1935 of the court of the Munsif of Fatehabad at Agra, the suit having been filed by the present plaintiff against defendants Nos. 5, 6 and 7 for possession over birt rights.
It was contended in the plaint that after the decision in that earlier suit, defendants Nos. 1 to 4 had been drafted from a different locality to Fatehabad by defendants Nos. 5, 6 and 7 and that about 3 years before the institution of the suit (the suit having been filed on 10-2-1947) the defendants again interfered with the plaintiff's rights and took possession of these houses by serving there as sweepers to the detriment of the plaintiff's rights.
The cause of action as alleged in the plaint arose in the year 1944 when such unlawful possession had been taken by the defendants and the plaintiff's possession had been interfered with.
2. The suit was contested by the defendants on the ground that the previous litigation did not relate to the houses in dispute, that theplaintiff had not been In possession over the birt rights during the last 12 years and he was not the owner of the birt, that the birt rights belonged to the defendants and that the plaintiff was not entitled to any relief.
3. The courts below held that the plaintiff was able to establish that the alleged customary right had been exercised by the plaintiff and that it was recognised in suit No. 149 of 1938 aforesaid and, further that since the enjoyment of that right had been interfered with by the defen. dants some time in the year 1944 the plaintiff was entitled to a decree.
4. It has been contended in second appeal by the defendants that the right of scavenging in a particular house was purely based upon a contractual relationship between the owners and the occupants of a house and a scavenger and such a right cannot form the basis of a custom and that even if the custom were held to be proved it will not have the Incidence of reasonableness on account of altered circumstances brought about by the advancement of times and it cannot, therefore, be legally enforced.
It was further contended that the decision in suit No. 149 of 1938 will not have the effect of res judicata because some of the defendants to the present suit were not parties to the earlier suit It has also been contended that the courts below failed to appreciate certain vital facts of the case and made a misappreciation of the evidence that had been produced.
5. The right of the kind 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 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.
6. In Ramaswamy Aiyar v. Venkata Achari, 9 Moo Ind App 344 (PC) (A), the plaintiffs had claimed as representatives of the Arya Brahmans, claiming in hereditary right, the privilege of administering purohitam (religious rites and ceremonies) to seventeen classes of pilgrims who resort to the shrine of the great Pagoda and other temples in the island of Rameswaram in Madras. Their Lordships of the Privy Council insisted on evidence of plaintiff's right by
'proof of its origin or by such proof of long and uninterrupted usage as in the absence of a documentary title will suffice to establish a prescriptive right, the existence at any time of the original and exclusive privilege which the appellants have made the foundation of their title.'
Again, in Krishna Aiyar v. Ananta Rama Aiyar, 2 Mad HCR 330 (B), it was held in a case similar to the above that the plaintiff should prove a contract between the parties or usage and prescription.
7. In Khushya v. Mangala, 12 All LJ 267: (AIR 1914 All 376 (2)) (C), birt-jajmani of sweepers was considered to be of 'a well-known form of tenure in this country', but the plaintiff must prove either a grant or else some usage or such long continued possession as raises the presumption of a lost grant.
8. The matter came up for consideration before a Division Bench of the Calcutta High Court in Gourmoni Debi v. Chairman of Panihati Municipality, 12 Cal LJ 74 (D). The matter related to the right of a degraded Brahmin of the class known as Mariporas, to officiate, in a specified burning ground, at the cremation of all dead bodies brought there, and of the right of a Municipal Corporation governed by the provisions of the Bengal Municipal Act of 1884, to create in favour of a member of this class of Brahmins, an exclusive right of this character.
Upon a review of a number of decisions it was held that a claim for a declaration that the plaintiff is entitled to the exclusion of all other Brahmins of the class to which he belonged, to officiate as a priest at the cremation ceremony was not maintainable under Hindu Law or any customary right. It was further held that a custom to be valid, must have four essential attributes: first, it must be immemorial; secondly, it must be reasonable; thirdly, it must have continued without interruption since its immemorial origin, and fourthly, it must be certain in respect of its nature generally, as well as in respect of the locality where it is alleged to obtain and the persons whom it is alleged to affect.
It was again observed that in order to ascertain whether a particular custom is reasonable or not one must look to the possible period of its inception. It was further held that a voluntary consent of the people to the employment of the plaintiff of his predecessors as cremation priests, cannot confer upon them any exclusive right, and the continuance of this state of things even for generation, cannot confer upon him a legally enforceable right.
9. The matter came up for consideration by a Bench of this Court in Lachman v. Bhajan 0065/1928 : AIR1928All389 . The parties to that case were sweepers residing in the city of Mathura. The plaintiffs brought the suit for an injunction restraining the defendant from rendering services as a sweeper in a certain Dharamshala as part of their 'birt'. It was claimed that the plaintiffs were entitled to the privilege of service in the Dharamshala to the exclusion of the defendant who interfered with the exercise of the plaintiffs' right.
The defendant claimed the Dharamshala as part of his own birt on allegations similar to those of the plaintiff and an important complication was introduced in the case that the Manager of the Dharamshala, as representing the owner thereof, desired to engage the services of the defendant in preference to the plaintiff. The suit was dismissed by the trial court on the ground that the owner of the Dharamshala who was not a party to the suit could not have the services of sweepers forced on him against his own inclination.
The Subordinate Judge upheld the decree of the first court for two additional reasons, viz. (1) the birt of both parties being now included in the Dharamshala, the plaintiffs' right could not be separated and (2) the relief of injunction was discretionary with the court and under 'the circumstances of the case it should be refused. A second appeal was preferred to this Court and reliance was placed on 9 Moo Ind App 344 (PC) (A); 2 Mad HCR 330 (B); Wochi v. Ulfat, ILR 20 All 234 (P); and 12 All LJ 267: (AIR 1914 All 376 (2)) (C). It was observed that:
''Except possibly in cases where the right can be traced to a grant of an irrevocable characterby the owner of a house or to usage and prescription proved by evidence to be binding on the owner of the house the right of birt-jajmani 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 another only where it is a matter of indifference to the owner as to who renders services to him on payment of remuneration which he is willing to offer.'
10. It was further observed that:
'in practice it is seldom that a grant or usage and prescription binding on the owner of a house can be established. It is unnecessary to speculate and to illustrate cases in which the owner can be considered bound to recognize the birt-jajmani rights of menial classes. 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.'
On the other side there was the evidence of Buddha, the defendant, supported by the evidence of four witnesses, Karim Khan, Kailash Nath, Jagdish Prasad and Mata Prasad who owned houses within that locality and who stated that Buddha and Saiga defendants had been scavenging their houses and had been rendering services to them for over 12 years.
It is important to note that on the side of the plaintiff not a single house-owner or occupant of any house had been produced. The Judgment Of suit No. 149 of 1938 indicates that it related to a birt specified in schedule 'A' annexed to the plaint and it was contended that this birt, belonged originally to three persons, viz., Chhidda, Chunni, and Murli who were members of a joint Hindu Family, that Murli died last of all and on his death the birt was inherited by his daughter Smt. Deoki, that the plaintiff and pro forma defendant No. 5 were the next reversioners of Murli and that as Smt. Deoki did not want to carry on work of scavenging, she mortgaged the birt in dispute to the plaintiff and to defendant No. 5 by means of a usufructuary mortgage deed, and since then they had been in possession of it and that defendants Nos. 1 to 4 who were unconnected with the family of Chhidda or Murli and had no right in the birt in dispute interfered with their rights and forcibly dispossessed them.
The suit was one for possession and for ejectment of defendants Nos. 1 to 4 and also for certain amount as damages. Defendants Nos. 1 to 4 contested the suit. They denied that the plaintiff or defendant No. 5 belonged to tha family of Chhidda or Murli or Smt. Deoki had siny right in the birt. They pleaded that Chhidda was the sole owner and the plaintiff was not his next reversioner and had no right to sue.
No question of grant or custom appears to have been raised in that suit by either party. It was a matter of admission by the contesting defendant in that suit that Chhidda was the owner of the birt.
On the other hand it was contended by the plaintiff to that suit that he along with Chhidda,Chhuni and Murli was also owner of it. The court found that Murli was the last male owner of the property and that the plaintiff was his next reversiouer and was entitled to sue It was further found that the plaintiff had been dispossessed sometime in 1936 and that the plaintiff was, therefore, entitled to possession together with certain amount of mesne profits.
That decision has, therefore, been of no assistance to us upon the question as to whether the right of the kind claimed by the plaintiff arose by agreement amongst sweepers defining the area and houses where each was to render service without interference by the other or whether it was acquired by a grant by which owners of particular houses conferred the exclusive privilege of serving in that capacity to the exclusion of all others following the same vocation or whether the right was based upon usage and prescription.
Evidently therefore where the right cannotpossibly be traced to a grant of an irrevocablecharacter by the owner of the houses or to usageand prescription proved by evidence to be binding on the owner of the house, the right of birt-jajmani though enforceable between the rivalclaimants cannot prevail against the wishes ofthe owner, as was observed by the Calcutta HighCourt in the decision cited above. A voluntaryconsent of the people to the employment of theplaintiff or his predecessors as scavengers cannot confer upon them any exclusive right and thecontinuance of this state of things even for generations (about which there is of course no evidence in the present case) cannot confer upon theplaintiff a legally enforceable right.
11. There is a Madras decision, which need be noticed. It is on the basis of that decision that the learned Single Judge who referred this case to this Bench for decision observed that a important question of law arises in this case whether the birt of scavenging be recognised in the present society, particularly when the owners of the houses do not want to engage one party or another.
The learned Judge also observed that it may be that at one time those rights may have been enforceable but the question of law is whether it is enforceable in the present condition. The question is partly answered by the Calcutta decision of which a reference has already been made above by us. The Madras decision is reported in Raghudu v. Erraiya, AIR J938 Mad 881(G).
In that case a mortgage was made of the rights of scavenging and when it was sought to be enforced it was opposed. The case was based upon a customary right. It was held that any custom which is contrary to public good and operated to the prejudice of the many, beneficial only to a particular individual is prima facie unreasonable and cannot be enforced by any Court of law, that the custom to claim a monopoly to pursue an occupation which is reasonable at one time may become unreasonable at another time and that a custom obtaining amongst the scavenger community in Madras allowing their scavenging right to be mortgaged, sold etc., cannot be allowed, as it would turn out to be an oppressive monopoly; further such a custom could not have been reasonable even at the commencement and much less can it be held to be so in a city like Madras, having regard to the modern conditions. During the course of his judgment, the learned Judge observed:
'The right was not based on any definite contract with the owners of the said houses toy which they were bound to employ the defendants for any particular period. If the owners refused to employ them, no cause of action could be founded thereon, and no injunction could be granted, compelling them to employ these people. The right that was claimed was therefore a right in substance to prevent a man from pursuing his legitimate calling. (Vide Rama Krishna v. Ranga, ILR 7 Mad 424 (H); Raja Shivapa v. Krishna Bhat, ILR 3 Bom 232 (I); and Maha-deva v. Suryaprakasam, AIR 1915 Mad 597 (J).)
'The general proposition is that: The law will not permit anyone to restrain a person from doing what the public welfare and his own interest requires that he should do, and any restriction which is sought to be imposed on a man pursuing his legitimate calling will always be considered to be illegal unless it is brought within any of the recognised exceptions known to law. Such exceptions have been recognized in the interests of trade or business and they too in the interest of the general public.'
Further on the learned Judge observed:
'Lastly, it is contended that the claim of the plaintiff is based on custom and therefore it is sustainable. It is a 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.'
12. Whatever view may be taken of the matter, we are of the opinion that in the present case the plaintiff was not able to establish what origin is assigned to his right. He did not contend whether it was based upon a grant or whether it was based upon a custom. Evidently therefore the principles laid down in 0065/1928 : AIR1928All389 , and in the Calcutta decision referred to above, would be applicable, and the right of birt-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 for well nigh five years when the suit was heard by the Munsif.
13. There is one other aspect of the case which has to be noticed. As we already observed the plaintiff did not produce any of the house-owners or the occupants in support of his claim. The defendants examined four witnesses. They were Karim Khan, aged, 60, Kailash Nath aged 27, Jagdish Prasad aged 30 and Mata Prasad aged 39 years. They were owners of houses within the same area.
Karim Khan and Mata Prasad deposed that Buddha had been doing scavenging work at their houses for very many years. In the case of Karim Khan it was for 18 or 19 years, and in the case of Mata Pd. it was for the last 13 years. Kailash Nath and Jagdish Prasad deposed that Saiga defendant had been doing scavenging work at their places for over 14 years. The learned Munsif in dealing with the evidence of these witnesses observed:
'The defendants have examined individual house-holders to show that their houses have been sweeped by the defendant but these witnesses are very young in age and the plaintiff has himself admitted that the defendants have been enjoying the birt for the last 4 or 5 years. Inthe circumstances their evidence la of no consequence'.
We have not been able to appreciate the observation made by the learned Munsif that these witnesses are very young in age and therefore their evidence is of no consequence. We have already stated what the ages of these witnesses were and it is manifest that they are not men of very young age so as to merit a complete rejection of their testimony.
14. The criticism of these witnesses by the learned Additional Civil Judge when he heard the appeal has been couched in his Judgment in the following words:
'The statements of the witnesses examined by the defendants who tried to make out that the defendants have been sweeping the houses in suit for the last more than 12 years are clearly untruthful -- and unreliable because they run counter to (Ex. 5) the warrant of Dakhal Dehani which shows that on 21-1-1939 the plaintiffs obtained possession over the birt in suit in execution of decree passed in suit No. 149 of 1938.
I cannot conceive that in spite of Dakhal through court the defendants continued to scavenge the houses and the plaintiff could not get possession over his lost right.'
Here, again, the house-owners or the occupiers were not parties to the previous litigation and if they had said that Buddha and Saiga defendants have been serving them for over 12 years, a fact which was not specifically denied by the plaintiff, it would be too much to say that these witnesses deliberately told a lie specially when the Dakhal Dehani Ex. 5 does not indicate that when formal or symbolic possession had been taken by the plaintiff in execution of decree No. 149 of 1938 the houses of these parties were brought within the purview of that Dakhal.
15. A question was raised before us as to whether it would be permissible for us in second Appeal to examine the evidence of these witnesses and to find out for us their probative value. Read with Section 101 of the Code of Civil Procedure, Section 100 expressly bars second appeals on questions; of fact.
But although no second appeal can be preferred on questions of facts, when such an appeal is already before the High Court it may determine issues of fact when such issues (1) have not been determined by the lower appellate court and (2) have been wrongly determined by reason of any illegality, omission, error or defect such as is referred to in Sub-section (1) of Section 100, C. P. C., provided the evidence on record is sufficient for such determination. This is in view of I the express provisions of Section 103 of the Code.
The question of existence of a custom is generally a mixed question of law and fact. Again, a finding of fact may be vitiated by error of law, for example, failure to consider important evidence or on misreading or misinterpretation of evidence. Under the circumstances disclosed above we are of the opinion that in this second Appeal we would be justified in looking into the evidence on that point in order to find out whether any mixed question of law and fact necessary for the disposal of the appeal has been wrongly determined by the lower courts by reason of any illegality, omission, error or defect such as is referred to in Sub-section (1) of Section 100.
16. To sum up therefore we are of opinion that the foundation for the plaintiff's claim forpossession and damages had not been established to entitle him to any relief. Consequently, we allow this appeal, set aside the decisions of the courts below and dismiss the plaintiff's suit with costs to the defendants in all the Courts.