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. Ghure 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