A customary right of birt-jajmani, allowing a sweeper to serve exclusively in certain houses, cannot prevail against the wishes of the house owners.

( 1 ) THE parties to this case are Lal Begis or sweepers, residing in the town of Fatehabad in District agra. The plaintiff-respondent Balwanta brought the suit out of which this second Appeal has arisen for possession over birt rights in certain houses, situated in Mohalla Parihar, Mohalla purani Mandi, Mohalla Ghalla Mandi, Mohalla Rajput and Mohalla Kurhana within the town area of Fatehabad, and for recovery of certain sum as damages together with pendente lite and future damages upto the date of possession at the rate of Re. 1/- a day. The right claimed, as we understand it meant that the plaintiff has the exclusive right to serve for remuneration in the houses specified in the plaint and situated within those mohallas. It is not clear from the plaint as to what origin is assigned to the plaintiffs rights. His case, as stated in the plaint, is that the houses have been the birt property of the plaintiff, and that in the year 1938 that right had been recognised in suit No. 149 of 1935 of the court of the Munsif of Fatehabad at agra, the suit having been filed by the present plaintiff against defendants Nos. 5, 6 and 7 for possession over birt rights. It was contended in the plaint that after the decision in that earlier suit, defendants Nos. 1 to 4 had been drafted from a different locality to Fatehabad by defendants Nos. 5, 6 and 7 and that about 3 years before the institution of the suit (the suit having been filed on 10-2-1947) the defendants again interfered with the plaintiffs rights and took possession of these houses by serving there as sweepers to the detriment of the plaintiffs rights. The cause of action as alleged in the plaint arose in the year 1944 when such unlawful possession had been taken by the defendants and the plaintiffs possession had been interfered with.

( 2 ) THE suit was contested by the defendants on the ground that the previous litigation did not relate to the houses in dispute, that the plaintiff had not been In possession over the birt rights during the last 12 years and he was not the owner of the birt, that the birt rights belonged to the defendants and that the plaintiff was not entitled to any relief.

( 3 ) THE courts below held that the plaintiff was able to establish that the alleged customary right had been exercised by the plaintiff and that it was recognised in suit No. 149 of 1938 aforesaid and, further that since the enjoyment of that right had been interfered with by the defen. dants some time in the year 1944 the plaintiff was entitled to a decree.

( 4 ) IT has been contended in second appeal by the defendants that the right of scavenging in a particular house was purely based upon a contractual relationship between the owners and the occupants of a house and a scavenger and such a right cannot form the basis of a custom and that even if the custom were held to be proved it will not have the Incidence of reasonableness on account of altered circumstances brought about by the advancement of times and it cannot, therefore, be legally enforced. It was further contended that the decision in suit No. 149 of 1938 will not have the effect of res judicata because some of the defendants to the present suit were not parties to the earlier suit It has also been contended that the courts below failed to appreciate certain vital facts of the case and made a misappreciation of the evidence that had been produced.

( 5 ) THE right of the kind claimed by the plaintiff may arise by agreement amongst sweepers defining the areas or houses where each has to render services without being interfered with by the others, in which case the parties to such an agreement can enforce it as between themselves. It cannot however afford protection against interference by third persons. Such right may also be acquired by grant by which owners of particular houses may confer the exclusive privilege of serving in that capacity to the exclusion of all others following the same vocation. Usage and prescri