LODHA, J. - (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. The defendants resisted the suit and pleaded inter alia that the right of scavenging is not a civil right and as such the suit is barred under sec. 9 of the Civil Procedure Code. Issue No. 4 was framed on this point and the same was taken as a preliminary issue. As already stated above, both the lower courts have answered the point in favour of the defendants. No-body has appeared on behalf of any of the respondents to oppose the appeal inspite of service of notice and consequently I have heard the appeal ex parte. Learned counsel for the appellant has urged that the courts below have misdirected themselves by nonsuiting the plaintiffs on the ground that the alleged hypothecation of the scavenging right by Jamadar Pishta in favour of the plaintiffs' ancestor was invalid and consequently the plaintiffs were not entitled to any relief. In coming to this conclusion the learned Civil Judge has relied upon Raghudu vs. Erraiya (l) It may be observed that in the Madras case the mortgagees had brought a suit for enforcement of their right of mortgage in respect of scavenging. It further appears that they had been dispossessed of the scavenging rights and the alleged mort-gagors had started exercising the same. The defence was that the debt had been discharged and that no right to an injunction could be claimed. In these circumstances it was observed that "what was sought to be hypothecated in favour of the plaintiffs was the future income to be derived from the work of scavenging and was thus a mortgage of non-existing property and a transfer of property to come in future. " It was further observed that 'the right is not based on any definite contract with the owners of the said houses by which they were bound to employ the respondents for any particular period. If the owners refused to employ them, no cause of action can be founded thereon and no injunction can be granted. " It would thus appear that the right claimed in the Madras case was in substance a right to prevent a man from pursuing his legitimate calling.
(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. In Pearey vs. Pachchoo - FB (2) it was observed that "in a claim of Khakrobi in respect of scavenging rights it is necessary to establish by evidence its origin or a long and uninterrupted usage. For, the basis of the claim may be either an agreement or a lost grant from the owners of a long and uninterrupted usage so as to raise a presumption of lost grant. It is only when the incidence, the extent and the nature of the right claimed by evidence that such a right can be held to be enforceable. It is well settled that no court can enforce an agreement between two parties involving the right of a third party unless it is established that it has consented to or in a matter of indifference to that party. It may be stated here that the plaintiffs in the present case have pleaded the origin and the uninterrupted usage in respect of the right of scavenging to the exclusion of others and it is to be seen in the course of trial whether they are able to establish their right? ;