LACHMAN Vs. BHAJAN

JUDGEMENT

(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.