SARWAR LAL Vs. RAM NARAYAN

JUDGEMENT

(1.) On the Question of law raised in this second appeal, namely, whether the right claimed by the plaintiff-appellant is a civil right cognizable by a Civil Court, we feel that our decision must be in the negative. Plaintiff claims to be the owner of the big smashan (cremation ground) in the bed of the river Moosi and to have performed funeral ceremonies of the Kayast, Khatri, Marwari and Rajput people from time immemorial through his Maha Brahmin agents, specially called from the North for this purpose and also to have enjoyed exclusivciy a moiety of the voluntary offering made by the Jujmans towards the funeral rites of Phekwai, Betharni, Dooshala, Uthala, Daswan, Kriya Karma for the past 200 years. The defendants, according to him, are his servants who by virtue of some agreement are entitled to half the share in the offerings in lieu of the funeral rites they perform at that place. Plaintiffs contention is that as against this established practice they (the defendants) have failed to give his share in the offerings made in connect ion with the funeral rites of Raja Tarachand. He has therefore brought the suit for the recovery of his share amount and also for a permanent injunction restraining the defendants from interfering with his right to take his share in the proceeds of such ceremonies as the defendants would perform.

(2.) The defendants resisted the claim of the plaintiff on the ground that the plaintiff has no exclusive right, that he is no longer a Maha Brahmin as he has embraced Main, that they are neither his agents nor has the performance of funeral rites been in pursuance of any contractual obligation between the Dlaintiff and themselves. They claim that they as Maha Brahmins are entitled to perform the funeral rites at the request of their disciples or Jujmans and the plaintiff cannot claim anv share in the voluntary offerings made to them. They further contend that the alleged vrit (birt) right is not a legal or civil right enforceable in law.

(3.) The Court of the first instance held that inasmuch as the alleged vrit (birt) right is connected with a particular place and the plaintilf is in possession of the same from the time of his ancestors enjoying a share in the voluntary offerings of the Tujmans it is a property in relation to which a suit can lie in the Civil Court. He however held at the same time that this right does not confer on the plaintiff the privilege of compelling Jujmans to get the ceremonies done by him or by his agents and pay remuneration therefor for such acts naturally depend upon the volition of the Jujmans concerned. He therefore gave a decree to the effect that if the persons concerned wish to get the ceremonies, done by the plaintiff or his agents, the defendants will not interfere with that right. He also iound that the defendants were not acting as agents or servants of the plaintiff in performing the funeral rites and that his suit against them for recovery of the amount in relation to Raja Tarachands funeral rites cannot be decreed. In the result, the suit of the plaintiff was partly decreed. But the lower appellate Court, differed from the view of the trial Judge that the vrit (birt) right claimed can at all be said to a right to property or a civil or legal right cognizable by Civil Courts and dismissed the entire suit on that account. It is against this order that the plaintiff has come in appeal.