1. The parties to this case are sweepers residing in the city of Muttra. The plaintiffs-appellants brought the suit out of which this appeal has arisen for an injunction restraining the defendant from rendering services as a sweeper in the dharamsala of Seth Ram Gopal claimed by the plaintiffs as part of their 'birt,' which, as we understand it, means that they have the exclusive right to serve for remuneration in certain houses not necessarily situated in a compact area.
2. It is not clear from the plaint as to what origin is assigned to the plaintiffs' right. Their case as stated in the plaint is that a house of which the boundaries are given together with other houses 'has been the birt property of the plaintiffs and their ancestors for a long time,,' that another house of which the boundaries are also given formed part of the defendant's birt, and that a dharamsala has been recently constructed by Seth Ram Gopal on the sites of the two houses but that the latrines appertaining to the dharamsala stand on the site of the house which was part of the plaintiffs' birt. Hence it is claimed that the plaintiffs are entitled to the privilege of service in the dharamsala to the exclusion of the defendant, who, however, interferes with the exercise of the plaintiffs' right. The defendant claims the dharamsala as part of his own birt on allegations similar; to those of the plaintiffs. The controversy is thus narrowed to the simple issue whether the dharamsala is the birt of one or the other of the parties. But an important complication has been introduced by a finding of the Courts below that the manager of the dharamsala as representing the owner thereof desires to engage the services of the defendant in preference to the plaintiffs.
3. The Court of first instance found on
overwhelming evidence... produced by the plaintiffs, which proves that the sweepers of Muttra have for a long time past been mortgaging their jajmani birts as a tangible property.... But whether the practice or custom as the plaintiffs choose to call it can be allowed to trench upon the undoubted rights of the owners of the property to choose their own sweepers is a question which presents some difficulty.
4. He dismissed the suit in the end on the ground that the owner of the dharamsala who is not a party to the suit cannot 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 dharamsala the plaintiffs right could not be separated, and (2) the relief of injunction is discretionary with the Court and under the circumstances of the case it should be refused.
5. The second appeal came on for hearing before a single Judge of this Court. It has been referred to a Bench of two Judgas in view of the questions involved in the case.
6. A right of the kind claimed by the plaintiffs may arise by agreement amongst sweepers defining the areas or houses where each is to render services without interference 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 a 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.
7. In Ramaswamy Aiyan v. VenkataAchari  9 M.I.A. 344 the plaintiffs had claimed as presentatives of the Aryu Brahmans, claiming in hereditary right, the previlege 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.
8. In Krishna Aiyan v. Anant Ram Aiyan 2 M.H. Cr. 330 it was held in a case similar to the above that the plaintiff should prove a contract between the parties or usage and prescription.
9. In Oochi v. Ulfat  20 All. 234, an agreement amongst two rival factions of Mahabrahmans of a particular village that they should by turns collect and receive offerings during certain months and refrains from receiving any offerings in certain other months was upheld.
10. In Kushya v. Mangla  12 A.L.J. 267 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.
11. Except possibly in cases where the right can be traced to grant of an irrevocable character by 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. 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. It points to the plaintiffs right having its origin in agreement amongst sweepers which is lost in antiquity and which is now evidenced by usage prevailing amongst the local sweepers. In this view of the case the plaintiffs' appeal must fail and is dismissed with costs.