PUTTANGOWDA MALLANGOWDA PATIL Vs. NILKANTH KALO DESHPANDE

JUDGEMENT

(1.) WE are of opinion that the authorities rightly decide that a Court of Small Causes can entertain a suit, the principal purpose of which is to determine a right to immoveable property, provided the suit in form does not ask for this relief but for payment of a sura of money, and that under the circumstances of this particular case the suit was cognizable b] a Court of Small Causes. Section 15 of Act IX of 1887 Provides that subject to the exceptions specified in the second Schedule of the Act, and to the provisions of any other enactment for the time being in force, all suits of a civil nature, c which the value does not exceed Rs. 500, shall be cognizable by a Court of Small Causes, The exceptions contained in the second Schedule are numerous and specific, and, in Out opinion, the Court in Bapuji Raghunath v. Kuvarji Edulji Umrigar (1890) I.L.R. 15 Bom. 400, 404 was right in holding that those exception could only refer to suits brought expressly for the purpose of obtaining decrees of the nature mentioned in the exceptions. Jamnadas v. Bai Shivkor (sic) was decided price to the passing of Act IX of 1887, and cannot be applied to the law declared by that Statute. It appears to us that it is no possible that the finding of a Court of Small Causes, in a such properly within its jurisdiction as such a Court, upon an issue incidentally arising as to the title to immoveable property, case operate as rest judicata in any subsequent suit for the determination or enforcement of any right or interest in immoveable property, the reason being that under Section 33, a Court invested with the jurisdiction of a Court of Small Causes with respect to the exercise of that jurisdiction and the same Court will respect to the exercise of its jurisdiction in suits of a civil nature not cognizable by a Court of Small Causes, are for the purpose both of the Provincial Small Cause Courts Act and of the Class Procedure Code, to be deemed to be different Courts. In the connection the observations of Sir Raymond WEst in Pitamber Vajirshet v. Dhondu Navlapa (1887) I.L.R. 12 Bom. 486, 489 are in point:-" Having the Small Cause Court jurisdiction the Subordinate Judge must have, dealt with this case under that jurisdiction, even if he w not quite alive to it at the time." If he were to deal with the case under his ordinary civil jurisdiction, he would be violative the provisions of Section 16 of Act IX of 1887 which prohibits the trial of a suit cognizable by a Court of Small Causes by are other Court having jurisdiction within the local limits of the Court of Small Caused, by which the suit is triable.