KORDATU GURAYYA Vs. VUPPALAPATI SATHIRAJU

JUDGEMENT

(1.) The suit was filed as one of a small cause nature and the learned Subordinate Judge, holding that the Small Cause Court had no jurisdiction, returned the plaint for presentation to the proper Court. The correctness of that order is questioned before me.

(2.) The allegations in the plaint are, that the defendant took the land on lease for one year, that on the expiry of the period he continued to be in possession for another year, refusing to surrender it in spite of demands and that the plaintiff is therefore entitled to Rs. 170 as "damages for use and occupation", that amount being a year's rent as provided by the lease deed. The short question is, whether the suit is excluded from the jurisdiction of the Small Cause Court by Art. 31, Schedule II of the Provincial Small Cause Courts Act. That Article reads thus: Any other suit for an account, including a suit by a mortgagor, after the mortgage has been satisfied to recover surplus collection received by the mortgagee, and a suit for the profits of immoveable property belonging to the plaintiff which have been wrongfully received by the defendant.

(3.) The view of the lower Court is supported on the ground that the present claim is in essence one for "the profits of immoveable property" and that being so, the suit falls within the Article. On the allegations in the plaint, the defendant's possession is wrongful and he can be turned out as a trespasser. There is nothing to prevent a landlord from claiming damages from a trespasser in possession. There is a distinction between a tenant continuing in possession after determination of the lease, without the landlord's consent and a tenant doing so with the landlord's consent. Under Section 116 of the Transfer of Property Act, the latter class of tenant is called a tenant "holding over", but the former, who in the language of the English law is known as a tenant "by sufferance", is no better than a mere trespasser and can be turned out at any time without any notice to quit. In the case of a tenant holding over, the relationship of lessor and lessee subsists, but where, as in the present case, the tenant continues in possession against the landlord's will, his liability is ex delicto and he is liable as for a tort Karookhar V/s. Nauboo Singh (1875) 24 W.R. 382 (2) . In Vira Pillai V/s. Rangaswami Pillai (1898) I.L.R. 22 Mad. 149 it was held on similar facts that the suit was cognizable by a Court of Small Causes. I am unable to accept the contention that this decision must be treated as having been overruled. There is no doubt a conflict of judicial opinion as regards the true nature of a suit for mesne profits. Is every suit for mesne profits exempted under Art. 31 or only such suits as involve the taking of accounts? While dealing with this question, the referring Judges in Savarimuthu V/s. Aithurusu Rowthar (1901) I.L.R. 25 Mad. 103 : 11 M.L.J. 428 (F.B.) express dissent from Subba Rao V/s. Sitaramayya (1900) I.L.R. 24 Mad. 118 : 11 M.L.J. 26 and Seshagiri Aiyar V/s. Marakathammal (1898) I.L.R. 22 Mad. 196 where the opinion of the majority of the Judges in the Full Bench case of the Calcutta High Court in Kunjo Behary Singh V/s. Madhub Chundra Ghose (1896) I.L.R. 23 Cal. 884 (F.B.) was adopted and followed, in other words, the referring Bench was disposed to agree with the view taken by the differing Judges in the Calcutta case. But dissent is nowhere expressed by the referring Judges from Vira Pillai V/s. Rangaswami Pillai (1898) I.L.R. 22 Mad. 149 which, as I have mentioned above, is practically a case on all fours; indeed, on the contrary, they refer to Art. 39 of the Limitation Act, which stands in contrast with Art. 109 and, as the following passage in their judgment shows, recognise the difference between suits for the profits of immoveable property and suits for damages for trespass: We may in conclusion, point out that suits of the character described in Art. 39 of the Limitation Act for compensation or damages for trespass on immoveable property are not excepted from the cognizance of Courts of Small Causes see Annamalai V/s. Subramanyan, Lingaya Ayyavaru V/s. Subramanyam and Lingayya Ayyavaram V/s. Mallikarjuna Ayyavaru reported in the foot-note to the decision of this Court in Seshagiri Aiyar, J., Marakathammal above referred to).