JUDGMENT : 1. The plaintiffs-respondents came into Court on the allegation that they were owners in possession of one half of the birt jarob kashi in the entire Mauza of Tundli, that the defendants are in possession of half of the said birt on condition that they paid half of its income to the plaintiffs, and that the defendants have all along been paying half the income of the said birt to the plaintiffs but ceased doing so in the month of February 1912. The plaintiffs claimed possession of the said birt and Rs. 30, their shares of the income for the two months before suit. I cannot find the term jarob kashi in Fallon's Dictionary, but it seems to be a somewhat grandiloquently coined word to express the ordinary services performed by sweepers. The defendants denied all the above allegations and therefore put the plaintiffs to proof of their case. They stated that ever since the construction of the railway station at Tundla (which is contiguous to Tundli), about sixty years ago, they and their ancestors had been employed as sweepers on the road from the railway station to a particular bungalow and that ever since they have been doing the work of sweepers on the said road and in the bazar which has grown up since the advent of the railway, with the consent of the owners and possessors of the houses. They denied that they had ever made any payment to the plaintiffs. The Court of first instance dismissed the suit holding that the plaintiffs had totally failed to prove that they were the owners of the birt in dispute or that the defendants were in possession of it with their permission. 2. On appeal the lower appellate Court found that it was proved that the birt jajmani of Tundli bazar belonged to the plaintiffs and that they has been in possession within twelve years and decreed the suit giving the plaintiffs a decree for possession of half the said birt and also for a sum of money. 2. On appeal the lower appellate Court found that it was proved that the birt jajmani of Tundli bazar belonged to the plaintiffs and that they has been in possession within twelve years and decreed the suit giving the plaintiffs a decree for possession of half the said birt and also for a sum of money. It seemed to me necessary, even assuming, and taking it for granted that the plaintiffs had established their birt rights (vide my remand order dated 12th June 1913 which should be read with this judgment), in order to decide the suit, to send down an issue to the lower Court to have it determined whether the plaintiffs had ever received one-half of the income of the birt jajmani and if so, since when and up till when and how much, and I gave the parties an opportunity of producing such additional evidence as they wished, as this point did not appear to have been gone into by either of the Courts below. My object in sending down this issue was to ascertain if there was any truth in the plaintiff's statement that for many years before the suit and up to within two months prior to its institution the defendants had regularly paid one-half of their earnings to the plaintiffs. I think, in any case however that the suit may be decided on a short point. The plaintiffs' case is that they are birtdars and they claim possession as such. The defendants denied the plaintiffs' assertion, and the plaintiffs were therefore bound to prove that they were the birtdars as the very foundation for their case. Jajmani birts are a well-known form of tenure in this country. A somewhat similar case came before a Bench, of which I was a member in Badri v. Mulloo, [1905] 8 O.C. 339. There a family of malis attached to the temple of Sittaji claimed that for a hundred and fifty years since the temple was built the family from which they had descended had continuously swept the temple and performed other services and had a right to receive certain offerings. They had recently been obstructed and asked for a declaration of their rights. Their suit was decreed on the findings of fact arrived at by the lower Courts. They had recently been obstructed and asked for a declaration of their rights. Their suit was decreed on the findings of fact arrived at by the lower Courts. In all these cases, where such a claim is put forward, it seems to me that the plaintiff must prove either a grant or else some custom or such long continued possession as raises the presumption of a lost grant. In the case of Ramasawmy Aiyan v. Venkata Achari, [1861-63] 9 M.I.A. 344 : 2 W.R. 21 : 19 Eng. Rep. 771 (P.C.) their Lordships of the Privy Council say at p. 384: “Upon the whole it is their Lordships' opinion that the evidence, though it may establish that the Arya community has existed as part, and a principal part, of the hierarchy of this pagoda and its dependencies from a period of remote antiquity, and that the appellants may be taken to be the actual representatives of that community, fails to show, either by documentary proof of its origin, or by such proof of long and uninterrupted usage as in the absence of a documentary title will suffice to establish a prescriptive right, the existence at any time of the original and exclusive privilege which the appellants have made the foundation of their title.” 3. The lower appellate Court seems to have assumed that because the plaintiffs say that they held a birt, and that it has been proved that the father and mother of the plaintiffs did the work of sweepers in the bazar of Tundli, that therefore they are birtdars within the well understood legal meaning of the term. Accepting every word of the plaintiffs' evidence as true it seems to me to establish nothing more than this: that when the East Indian Railway was advanced as far as Tundla, which became an important junction, a bazar was built in the village of Tundli which adjoins it. This was probably soon after the Mutiny. One of the sweepers who was employed to sweep the road and the shops was the father of the plaintiffs. He died and his widow, owing to the tender age of the two plaintiffs, could not do the work and the defendants did it. The plaintiffs say that they did it under a private agreement with the plaintiffs' mother. This the defendants deny. He died and his widow, owing to the tender age of the two plaintiffs, could not do the work and the defendants did it. The plaintiffs say that they did it under a private agreement with the plaintiffs' mother. This the defendants deny. Admittedly the defendants are doing the work now and have been on the plaintiffs' own showing doing it from a very long time. According to the findings of fact on remand they (the defendants) have never paid the plaintiffs anything. I do not think it can be held that the plaintiffs or their father had ever acquired any birt at all. They have not attempted to show its origin and on their own showing they have not been performing the service for many years. I hold there is no evidence on the record which could legally enable the lower Court to hold that the predecessors of the plaintiffs were birtdars as that term is understood in law. In my opinion the Court of first instance was right. I therefore set aside the decree of the lower appellate Court and restore that of the Munsif with costs including in this Court fees on the higher scale.