1. This second appeal has been filed by defendant-appellant against judgment and decree dated 31.08.1991 passed by Additional District Judge No.1, Bharatpur, whereby he dismissed the appeal filed by defendant-appellant and confirmed the judgment and decree dated 25.07.1989 passed by learned Munsiff Magistrate No.2, Bharatpur.
2. Plaintiff-respondent Kinna filed a suit for redemption of mortgage of 'Birat' which is a right of scavenging in the area situated in Mohalla Jatavan, Village Kumher, District Bharatpur. The suit was filed on 21.08.1984 alleging therein that Ramhet, plaintiff's grandfather, was having two brothers, namely, Ghure and Lohre. Gh
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ure was having a son; Chalana and Lohre was having two sons, namely, Shivli and Kishore. All the three, Chalana, Shivli and Ghure expired leaving no legal representatives behind them and their rights of scavenging were succeeded by legal representatives Kalua @ Bihari. Sons of Kalua are plaintiff Kinna and defendants no.2 and 3 and one Shri Sumran, who has since died and his legal representatives were brought on record as defendants no.4 to 10 and arrayed as Proforma respondents herein. Plaintiff mortgaged his aforesaid right of Birat to defendant-appellant for Rs.800/- in Samvat Year 2015. As per customs prevalent in the 'Harijans' no interest is payable on the amount of which the Birat is used to be mortgaged. The mortgagee is allowed to earn money out of such mortgaged Birat till redemption takes place and that such mortgage can be redeemed at any time. Plaintiff wanted to redeem the mortgage by making payment of Rs.800/- to defendant-appellant but he did not give back the Birat after taking the money. An application was made to Gram Panchayat by the plaintiff with the aforesaid allegations.
3. Defendant-appellant contested the suit by filing written statement. Learned trial court decreed the suit against which defendant-appellant filed first appeal, which too was dismissed. Hence, this second appeal.
4. This court, by its order dated 15.01.1992, admitted the second appeal for adjudication of following substantial questions of law:-
1. Whether the right for scavenging is a immovable property?
2. Whether if the right of scavenging is a immovable property the same can be mortgaged without any document and Registration?
3. Whether the suit for redemption is maintainable?
4. Whether the suit of the plaintiff-respondent is barred by limitation?
5. Whether the finding of the learned District Judge that there is custom in Harijans by which right of scavenging is mortgaged is based on no evidence?
5. Shri Vijay Kumar Jangir, learned counsel for appellant, has argued that the suit was not maintainable inasmuch as the right of scavenging is not a transferable right. Such a right cannot be mortgaged because it is neither movable or immovable property. Any grantee with regard to right of scavenging or any other right to do a particular thing in a particular manner, cannot be subjected to any mode of transfer. No evidence was produced by the plaintiff before the trial court to show that there existed any such custom amongst Harijans, which may show that right of scavenging is a right to be mortgaged. Learned counsel argued that right of scavenging is a civil right so limitation would apply, if at all it is accepted to be a case of mortgage. Mortgage was not proved by any registered document. Learned counsel referring to the statement of plaintiff Kinna argued that he specifically stated that 32-35 years back he simply mortgaged the said Birat for Rs.60/- with the defendant-appellant and thereafter he took the papers from Kalua and again granted the same for Rs.800/- in Samvat 2050. The writing was produced as Exhibit 1, however, no one had appeared to prove that writing.
6. Learned counsel for the appellant, in support of his arguments, has cited the judgments in Abid Ali Khan v. Secretary of State, (AIR (38) 1951 Nagpur 327), Abdul Gani v. The State of Madhya Pradesh, (AIR (38) 1951 Naagpur 342), G.M. Qadri v. Secretary to Government Industries and Commerce Department and another, (AIR 1959 J&K 26) and Ghulam Rasul Shah and another v. Habib Ullah Shah, (AIR 1959 J&K 28) and Amar Chand v. Mst. Shankari (1954 RLW 446). On that basis he argued that a custom in a particular community is required to be proved by definite evidence. The plaintiff was required to prove the instances of recent time to substantiate his case that the custom of 'Birat Jajmani' is still prevalent and burden of proving such custom was on the plaintiff which he failed to discharge. It is therefore prayed that the appeal be allowed.
7. Shri B.L. Agarwal, learned counsel for the plaintiff-respondent, argued that this court has, in catena of decisions, held the right of scavenging to be a civil right capable of being transferred. Reliance is placed on the judgments of this court in Khairati v. Devi Sahai, 1974 RLW 99 and Smt. Panchi v. Banshi Lal and Others , 1986 RLR 144. Learned counsel also cited a full bench decision of Allahabad High Court in Pearey and Another v. Pachchoo, AIR 1964 Allahabad 249, in which it was held that right of scavenging in specified area was a civil right. It is, therefore, contended that both the courts below by concurrent findings of facts found the mortgage of the Birat Khakrobi to have been proved, therefore, no interference in the impugned judgments is called for.
8. 'Birat Jajmani' viz., Whether or not the right of scavenging is capable of being mortgaged, is no more res-integra because this court in Khairati v. Devi Sahai, supra, relying on full bench judgment of Allahabad High Court in Pearey and Another v. Pachchoo, supra, and the earlier judgment of this court in Mst. Chandi v. Rampratap , 1952 RLW 235, held that right of Birat Jajmani, which is a right of scavenging, is a right of property, which is heritable as well as transferable. If that be so, such a right would also be capable of being mortgaged.
9. I am not inclined to uphold the argument raised by learned counsel for defendant-appelalnt that the plaintiff-respondent was not able to discharge the burden of proving that there was a custom of Biran Jajmani in their community or that it was heritable or transferable. This has been conclusively decided against the defendant-appellant by number of judgments of this court, especially in Khairati v. Devi Sahai, supra.
10. The learned trial court, in my view, was thus perfectly justified in directing redemption of the mortgage of this right on return of Rs.800/- to the defendant by the plaintiff.
This appeal is therefore dismissed with no order as to costs.