V V SRINIVASA AIYANGAR (RECEIVER) Vs. VCUNNIAPPA CHETTY

JUDGEMENT

(1.) A preliminary objection is taken as to the jurisdiction of this Court. It is first objected that the 3rd defendant does not live or carry on business in Madras and therefore the suit so far as he is concerned should be dismissed. Evidence has been taken on this point and I am of opinion that the suit is properly brought against the 3rd defendant. The evidence shows that he comes here to sell his casuarina trees and whenever he has any business to transact in Madras with reference to those trees he comes to Madras. Suits have been brought here against him and he has been arrested on warrants issued against him in Madras. I accordingly overrule the objection so far as the 3rd defendant is concerned.

(2.) The more difficult question that remains is whether the suit is one for land within the meaning of those words as used in Section 12 of the Madras Letters Patent. The suit is brought for the recovery of damages for trees cut and removed by the defendants. They are said to be trees in a plantation situated outside the limits of the ordinary original civil jurisdiction of this Court and the plaintiff s case is that this plantation wherein the trees stood is vested in him. The jurisdiction of this Court has to be determined on the facts alleged in the plaint. Now it is true no doubt that no relief with reference to the land is claimed, the only relief claimed being the recovery of a certain sum of money. But the plaintiff cannot obtain that relief without proving his title to the land sand an averment made in the plaint that the land belongs to him is necessary. If the title to the land is denied, then, of course, evidence has to be given to prove his title. If it is admitted by the defendants, then it is unnecessary to decide the question of title ; but in any subsequent suit between the parties the question of title to this land cannot be raised again. Either, therefore, by express decision or by implication the title to the land has to be declared in this suit and the matter becomes res judicata. Now, it appears to me that where on the allegation in the plaint the title to a land has to be determined either expressly or by implication so as to preclude it from being raised in any subsequent suit, the suit is one for land within the meaning of the words in Section 12 of the Letters Patent. Mr. Ramasami Aiyar relied upon the decision of this Court in Marappa Mudali v. S.T. McCarthy (1881) I.L.R. 3 M. 192 and upon the decision in Pattangowda v. Nilkant Lal Deshpande (1913) I.L.R. 37 B. 675 in which it was decided that when a suit is brought in a Small Cause Court for the recovery of a certain sum of money and the plaintiff has to prove his title to any land in that suit then the title to the land comes only incidentally before the court and the Small Cause Court is not divested of its jurisdiction to try that suit. That may be so. But the ground of these decisions is that the title to the land will not be res judicata in any subsequent litigation between the parties and when the title will not be res judicata between the parties it cannot be said that the question of title is properly before the court for determination. I am therefore of opinion that the suit is one for land, and it is conceded that if the suit is one for land it will not lie in this Court. I accordingly dismiss the suit. As the 3rd defendant s plea is disallowed. I make no order as to his costs. The plaintiff will pay the costs of defendants 1 and 2.

(3.) Mr. Tirunarayanachariyar applies for a certificate for counsel s fee. Mr. Ramsami Aiyar opposes this on the ground that no counsel s fee can be taxed in any case where he is instructed by a Vakil. Mr. Chamier supports him. The question has been argued earnestly for one entire day. I shall therefore give my reasons for my conclusion.