V.R. Newaskar, J.
1. This second appeal arises out of a suit filed by plaintiffs Pannalal and Kanhaiyalal Chamars against the 12 defendants who also belong to the same caste and are residents of the villages Bijalpur and Mundi for permanent injunction restraining them from removing the dead bodies of the caste which die in the four villages of Bijapur. Hukmakhedi, Garabadi and Mundi on the ground that they had an exclusive right to remote the carcasses of the cattle dying in those villages and to secure their hides. The right is claimed by the plaintiffs through their ancestor Punja, They trace their descent thus:
They allege enjoyment of the said right for the last five generations and more, According to them plaintiffs' father Motiram had filed a suit against the father of defendants 1, 2 and 3 and eight other persons of their caste for a declaration as to the: same right and had succeeded in that suit. A decree was passed in that Suit in plaintiffs' favour declaring that the family of the plaintiffs has such right.
2. In reply to the plaintiffs' suit the defendants denied that the plaintiffs had any right as claimed. It was also asserted that the, claim is not of civil nature,
3. The Trial Court held that the claim is not of civil nature although according to it It had been proved that the plaintiffs' father Moti-ram had succeeded in the earlier suit filed by him pertaining to this right. On the finding that the suit is not of civil nature the trial Court dismissed the suit.
4. On appeal the appellate Court reversed the decision, it held that the suit is of civil nature and in view of the materials on record including the decision in the previous suit a decree for permanent injunction as prayed for was passed.
5. This is a second appeal against that decision.
6. Mr. C. B. Sanghi the counsel for the appellants contended that the claim has been wrongly held to have been proved and it being of a civil nature.
7. It is clear from the copy of the Parwana Ex. P/l that as far back as in 1905 the claim of the plaintiffs' ancestor Punjwa as against the villagers of Bijalpur was recognised by the then existing authority and after due inquiry he was granted the parwana it further appears that later during the life-time of plaintiffs' faiiher Motirarn several Chamars of the village as also Dattu Bajai tried to interfere with his right to the skins of the animal dying in the village. A suit was filed by Motiram against them in the year 1908. This was Civil Suit No. 139 of 1908. In this suit Motiram claimed a declaration as to the same right. This suit was decreed on 29-7-1910 and it was declared that the plaintiffs' father Motiram was entitled to the right to take the skins of the dead animals of the villages Bijalpur, Hukamakhedi, Viran, Garbadi and Mundi. There was again interference with that right of the plaintiffs just before the present suit.
8. In view of the prior decision as far back as in 1910 in a suit between the predecessor of the plaintiffs and some of the villagers interested to deny the right in question, the issues as to the existence of this right and it being of a civil nature, ought to be taken to have been decided in plaintiffs' favour as against those persons.
9. It is not clear from the decision in Civil Suit No. 139 of 1908 whether the procedure similar to that under Order 1 Rule 8 of the present Civil Procedure Code as prescribed in Sections 30 and 32 of the Civil procedure Code 1877 had been followed. It is therefore difficult to hold that the issue regarding the claim not being of Civil Nature is barred by the principle of res judicata : vide AIR 1933 PC 183, Kumaravelu v. Ramaswami.
10. We will therefore name to consider this question anew.
11. Mr. C. B. Sanghi contends that the claim cannot be called one of civil nature since the cattle dead or alive belong to the owners residing in the villages in question and it ought to be their sweet choice to dispose the same of to any one including the plaintiffs or any of the defendants. The plaintiffs, under the circumstances, cannot claim an exclusive right to the carcasses of the cattle dying in these villages. The learned counsel relied upon the Full Bench decision of the Hyderabad High Court reported in AIR 1953 Hyd 1, Copal Rao v. Shiv Ramiah in support of his contention that whatever might have been the position prior to the promulgation of the Indian Constitution it is substantially altered by the conferral of fundamental rights upon a citizen under Article 19(1)(f) and (g).
12. In my opinion the contention is well founded. A custom of the village having the force of law and binding the villagers to allow the plaintiffs to take the carcasses of the animals dying in the village will run counter to the fundamental right of the villagers whose cattle the to dispose of the carcasses as their property to anybody they choose. It would further run counter to the right of the defendants to carry on profession of taking carcasses of the cattle and utilize them for the purpose of any trade. In case the plaintiffs alone are held to be entitled to take the skins of the dead cattle there will clearly be a restriction upon others to follow a similar trade.
The decision of the Hyderabad High Court in the Full Bench case referred to above fully supports this position. That was a case regarding the claim made by the plaintiff to act as Purohit to the exclusion of others in a village. The Full Bench held that such a right based on custom which might have force of law ceased to be of any efficacy after the Constitution. It is clear that the term 'law' as used in Article 13 includes custom having the force of law. Subsection (3) of Article 13 makes this clear. If therefore there be any custom having the force of law in a particular part of the territory of 'India which runs counter to any of the freedoms guaranteed under Article 19(1)(f) or (g) the custom will bee held void to that extent. Now if the cattle belong to the villagers their dead bodies in case they have a commercial value also belong to them and they have perfect freedom to dispose of in any way they like to anyone. They have further right to deal with any person desiring to carry on any trade or occupation with reference to skins of such dead cattle. Any citizen of India moreover will have a right, to carry on trade with reference to these skins anywhere in India including the villages in question, A custom having the force of law preventing either of them to do this will necessarily be, repugnant to their fundamental right thus guaranteed. Such a law will be bad. So would be any decision based on such a law,
13. The Courts below; seemed to have proceeded on the basis of right as developed by custom having the force of law and recognised by the courts on that basis which has become absolute (obsolete,?) due to promulgation of Article 13(1) of the Constitution. Their decisions are therefore unsustainable. It therefore follows that even if the plaintiffs had a right which might have been of a civil nature as is held in some of the Bombay decisions including AIR 1918 Bom 99, Savla v. Santya; AIR 1922 Bom 410, Mahadu v. Krishna and decisions of the Judicial Courts at Nagpur. 3 Nag L R 47, Yeshwant Rao v. Bhaskar Rao Patwari and 1942 Nag LJ 443, .Ganpat v. Babu, the same has become unenforceable and void after the Constitution since the custom On which it was; based has become bad.
14. The appeal therefore ought to beallowed and plaintiffs' suit dismissed with coststhroughout.