PEAREY Vs. PACHCHOO

JUDGEMENT

(1.) This case has come up before this Bench as a result of the following order of reference by Mithan Lal, J. in a second appeal. "I, therefore, direct that this case be laid before the Hon'ble the Chief Justice for constituting a larger bench to decide this appeal which involves only one question and no other, i.e. whether the right of Brit Khakrobi is enforceable in a Court of law, when its origin is not given." The second appeal arose out of a suit for possession and injunction in respect of alleged Brit Khakrobi and recovery of a sum of Rs. 84/- as mesne profits for a period or six months. The parties are sweepers. The case of the plaintiff-respondent No. 1, hereinafter called the respondent No. 1, was that he and his ancestors were owners of Brit Khakrobi, i.e. the right to earn money by scavenging the houses in a certain part of Chandausi town, and that the defendants started interference with the plaintiff's possession about six months before the institution of the suit. The defendants contested the suit on the ground that the respondent No. 1 was not the owner of Brit Khakrobi and had not been in possession of it and that defendants, appellants Nos. 2 and 3, hereinafter called the appellants, were the owners and in possession of the right and that defendant No. 1 who is respondent No. 2, has been unnecessarily impleaded.

(2.) Both the courts below found that the plaintiff was the owner of the alleged Brit right. The trial court dismissed the suit holding that the plaintiff had failed to prove his possession within 12 years before the institution of the suit. The lower appellate Court held otherwise and decreed the suit.

(3.) In second appeal pearey and Lakhan, appellants, challenged the findings of the Court below and at the time of arguments raised the legal plea that the right was not enforceable when the origin had not been given. The contention of the learned counsel for the respondent that the plea should not be allowed to be raised at the time of the arguments was rightly repelled by the learned single judge who allowed the legal plea to be raised. The second contention of the learned counsel for the respondent was that since the defendants had claimed a similar right or Brit Khakrobi in the locality in dispute the question of the origin of the rights did not arise. The learned counsel for the appellants on the other hand relied upon the Division Bench decisions of this Court in Buddha v. Balwanta, AIR 1958 All 699 and Lachman v. Bhajan, 26 All LJ 815: (AIR 1928 All 389) and contended that merely because of the claim of the defendants that they were themselves the owners of the Brit Khakrobi in the locality in dispute the denial of plaintiff's right will not lose effect and the suit could not be decreed unless the origin of the Brit claimed by the plaintiff was given. The learned single Judge thought that both the cases were distinguishable out in view of some general observations made by the Division Bench in AIR 1958 All 699 referred the appeal for deci-sion by a larger Bench.