KHAIRATI Vs. DEVI SAHAI

JUDGEMENT

(1.) THE plaintiff-appellant along with his brother Heera filed a suit for issue of perpetual injunction in respect of his right of scavenging but the same was dismissed by the Munsiff, Rajgarh on a preliminary point that the suit was barred under Sec. 9 Civil P. C. THE judgment and decree by the trial court were affirmed in appeal by the Civil Judge, Alwar and consequently the plaintiff has come in second appeal to this Court.

(2.) THE parties are Harijans and are engaged in the occupation of scavenging. THE plaintiffs' case as set out in the plaint was that they had been exercising right of scavenging (Brit-Khakrobi) in Danda Kakwari, a locality in the town of Rajgarh, District Alwar, since their fore-fathers as this right had been mortgaged with their ancestors by one Jamadar Pishta about 60 years ago in consideration of a sum of Rs. 200/ -. THEy alleged that the residents of the locality, i. e. their Jajmans want to get scavenging done by them. THEir allegation is that the defendants are obstructing them in exercise of the right of scavenging. THE plaintiff further pleaded that there is an ancient well established custom that a particular Harijan who has been scavenging a particular house or a locality would not be obstructed by another scavenger in exercise of that right. In the result it was prayed that a perpetual injunction may be issued against the defendants restraining them from interfering with the plaintiff's right of scavenging the houses in the locality mentioned above.

(3.) THE facts of the present case are however distinguishable. Here the plaintiffs' case is that they are exercising the right of scavenging for the last more than 60 years, and the owners of the houses want that they should continue to scavenge in their premises but the defendants are interfering with the exercise of the plaintiffs' right even though the owners of the houses want to get scavenging done by the plaintiffs. Hence this is a case where the defendants are preventing the plaintiffs from pursuing their legitimate calling. Thus the principle laid down in the Madras case does not come in the way of the plaintiffs from maintaining the suit.