G.M.LODHA, J. - (1.) HAVING heard the learned counsel for the parties, the case was adjourned for permitting Shri Purohit to find out that if any contrary view to the decision of this Court in Khairathi vs. Devi Sahai has been taken by this Court or any judgment of the Supreme Court or Privy Council is available. Shri Purohit fairly and frankly submitted that in view of the judgment of this Court in Khairathi vs. Devi Sahai (supra), the case will have to be remanded to the trial court for consideration of the other issues on merits.
(2.) ALL that can be held by this Court on the basis of the decision of Kharathi (supra)s case is that the right to scavenge the house in the particular locality can be enforced and the suit is maintainable under S. 9, C.P.C. This has been treated as civil right and property right. Since it is common ground that in view of the above decision, the right exists and in the earlier judgments of this Court in Mt. Chandi vs. Ram Pratap (2) it was held that Birit Jijmani of Dhobi was legal and it laid down that Birit Jijmani is right of property and which is heritable and transferable.
(3.) CONSEQUENTLY , the appeal is allowed, the judgment of both the lower courts are set aside along with decrees. The trial court is now directed to decide the case fresh on merits. The case is now remanded to the trial court to decide the case afresh giving priority to it. The parties would bear their own costs, throughout.;