Babi Khushra vs Ram Piari Khusra and Others

R.L. Anand, J.—Unsuccessful plaintiff Babi Khusra Chela Parkash Khusra has filed the present Regular Second Appeal and it has been directed against the judgment and decree dated 15.1.1980 passed by Addl. District Judge, Jullundur, who dismissed the appeal of the plaintiff.

The pleadings of the parties can be summarised in the following manner:-

Babi Khusra filed a suit for declaration against Ram Piari Khusra, Bahar Khusra, Thakar, Kuldip Khusra and Mai Khusra and it was alleged by her that she is the grand-Chela of her Guru Lajwanti Khusra, who died in the year 1955-56. Parkash Khusra was the Chela of Lajwanti Khusra, who died in 1967. After the death of Parkash Khusra, she was appointed her Chela. The plaintiff has as many as 30 villages mentioned in the head-note of the plaint besides the town of Nawanshahr, in which she had acquired rights of begging by giddagiri on the occasion of birth of a son, marriages and other ceremonies like Mundan etc. In this way, she had acquired the right of collecting ''Bakhshish'' in villages Alipur and Golewal of Tehsil Garhshankar. She had also been mortgaging her rights of begging from these villages. On 17.2.1975, she mortgaged the rights of Bakhshish of 15 villages in Rs. 1,500/- with Bahar and Thakar, defendants No. 2 and 3 respectively. On 4.6.1976, these villages were got redeemed by her. She also mortgaged on 17.3.1975, seven villages for a sum of Rs. 5,000/- with defendants No. 2 and 3 and the same were got redeemed by her on 4.5.1976. She had been begging from all these villages by doing giddagiri. The defendants objected her from begging from these villages. They have no right whatsoever to raise any objection. But they asserted openly that they would not allow the plaintiff to perform giddagiri in these villages. With these allegations the plaintiff has sought the declaration that she had the right to perform giddagiri in 30 villages including the town of Nawanshahr in terms of the writing dated 30.12.1965 and also for permanent injunction restraining the defendants from going to these villages in order to perform giddagiri and to collect the Bakhshish.

The suit of the plaintiff was contested by the defendants. It was denied by the defendants that the plaintiff is the Chela of Parkash Khusra. Rather their case is that Lajwanti Khusra and Ram Piari Khusra were Chela of Rup Lal Khusra. Ram Piari Khusra and Lajwanti Khusra inherited rights of Chelas from Rup Lal Khusra and after the death of Lajwanti Khusra, Chelaship devolved upon Ram Piari Khusra, defendant No. 1. They have denied as to if the plaintiff has any right to beg from the villages mentioned in the plaint. The agreement as set up by the plaintiff is inadmissible for want of consideration and registration. The plaintiff never went to the villages for begging. It was also stated by the defendants that the suit of the plaintiff was not maintainable. The defendants cannot be restrained from exercising their lawful profession. A similar suit was filed by the plaintiff at Moga which was dismissed by the Court and in these circumstances the present suit cannot proceed.

The plaintiff filed re-joinder to the written statement in which she reiterated her allegations made in the plaint by denying those of the written statement.

The above pleadings of the parties led to the following issues :-

Whether the plaintiff is the Chela of Parkash Khusra? If so, its effect? OPP

Whether the plaintiff has the exclusive right of Gidda Giri as Khusra in the disputed villages? OPP

Whether the plaintiff had mortgaged the Gidda Giri rights with defendants 2 and 3 and then got it redeemed ? If so, its effect? OPP

Whether there exists any custom on the basis of which the defendants are estopped from preventing the plaintiff for doing Gidda Giri in the villages in dispute? OPD

Whether the suit is not maintainable in the present form? OPD

Whether this Court has got a territorial jurisdiction relating to the villages which are within the jurisdiction of Tehsil Garhshankar? OPD

Whether there had been any previous litigation between the parties regarding the matter in dispute? if so, to what result and to what effect? OPD

Relief.

The parties led evidence in support of their respective cases. Issue No. 1 was decided against the plaintiff. Similarly, issues No. 2, 3, 4, 5 and 6 were decided against the plaintiff. However, issue No. 7 was decided in her favour and as a result of which the suit was dismissed.

Aggrieved by the judgment and decree passed by the trial Court, the plaintiff filed the appeal before the first Appellate Court, which vide impugned judgment and decree dated 15.1.1980 dismissed the appeal. During the pendency of first appeal, the plaintiff also filed an application under order 41 Rule 27 C.P.C. and wanted to place on record one agreement dated 30.12.1965 allegedly executed between Parkash Khusra on one hand and Babi Khusra on the other hand. That application was also dismissed.

I have heard Mr. R.K. Aggarwal, Advocate, on behalf of the appellant, Mr. M.S. Jain and Mr. Ashok Aggarwal, Senior Advocate, on behalf of respondents No. 1 to 3 and with their assistance I have gone through the records of this case.

First of all I will deal with the aspect whether the application under Order 41 Rule 27 C.P.C. has been rightly dismissed by the first Appellate Court or not. The ease set up by the plaintiff is that one agreement dated 30.12.1965 was allegedly executed between Parkash Khusra on the one hand and Babi Khusra (plaintiff) on the other hand. It is an admitted fact that none of the defendants was a party to that agreement and, therefore, if there is any agreement between Babi Khusra (plaintiff) and her alleged Guru Parkash Khusra, the defendants are not bound by any term of that agreement. Moreover, the additional evidence could not be led by the plaintiff as a matter of course unless it has to be shown that the evidence was not in the knowledge of the plaintiff or that the evidence was required for the just decision of the case. Since plaintiff Babi Khusra claims that she was a party to the said agreement, therefore, it was in her knowledge that there is one agreement dated 30.12.1965. Such a document, if helped the plaintiff-appellant, it ought to have been produced in the trial Court. Additional evidence cannot be led as a matter of course in the Appellate Court. Therefore, the said application has been rightly rejected by the first Appellate Court because that evidence had no bearing with regard to the controversy.

On merits also, the case set up by the plaintiff is that 30 villages including the town of Nawanshahr had fallen to her share where as per custom she can perform Gid-dagiri on the happy occasions such as birth of a male issue, marriages and Mundan ceremonies etc. it is also the case of the plaintiff-that she is the Chela of Parkash Khusra, who was the Chela of Lajwanti Khusra. The plaintiff has claimed exclusive right of business and profession. Before such declaration can be granted, it is obligatory on the part of the plaintiff to establish that such a right has been granted in her favour either by a law or under a custom or under an agreement which is enforceable against the defendants. The law has not given any monopolistic right to a particular person or sect of persons that such a person or persons can exercise exclusive right of begging. Also there is no custom to that effect. Before a custom can be acted upon, it has to be established that such a custom is a very old one and it is not against the public policy and that it has been universally accepted. If there is some internal arrangement between the Khusras with regard to the performance of Giddagiri, such a right is not enforceable. Moreover, any agreement to this effect that a particular person will perform Giddagiri in a particular area would only be an unreasonable restraint on the right of profession and such an agreement would be hit u/s 25 of the Contract Act and Article 19 of the Constitution of India. The plaintiff claims exclusive right of begging with practice forbidden by the statute. With regard to the custom also there is no such evidence that Khusras of other Districts had the similar practice to give exclusive right of begging or performing Giddagiri in respect of certain areas of the district to a particular of Khusras. Also there is no evidence on the record to show that Babi Khusra was ever nominated as Chela of Parkash Khusra to have the Gaddi of the Khusras or a particular district or the State. In this view of the matter. I do not differ with the reasons advanced by the first Appellate Court which had rightly dismissed the suit of the plaintiff.

Resultantly, this appeal is totally devoid of any merit and the same is hereby dismissed with no order as to costs.