KOPPA ANKI Vs. PONNAPPALLI VENKATA SUBBAYYA

JUDGEMENT

(1.) The chief point in this Civil Revision Petition is whether the Lower Court had jurisdiction to try the suit as a Small Cause suit. The suit was by the plaintiff to recover damages for use and occupation of his land from the defendant. Defendant's son was let into occupation of the land as plaintiff's tenant for five years, under Ex. A. After expiry of Ex. A he continued a tenant holding over. He died and his mother, the defendant, continued to cultivate without any notice to quit or protest from the plaintiff for six faslis. Plaintiff sues for damages for such use and occupation for three faslis, the rest of the claim being time-barred.

(2.) The plaint is clearly on the footing that the claim is for such damages and not for rent on the footing of the kabuliat, Ex. A. Defendant argued that this is a suit which is prohibited by Art. 31 of the second schedule of the Provincial Small Cause Courts Act from being tried by a Small Cause Court. Plaintiff urges that this objection was not taken before the District Munsif. It is certainly taken in the defendant's written statement, and as the District Munsif has not put down in his judgment the points for determination, we are unable to conclude that the point was abandoned by the defendant.

(3.) This is not a suit in which the defendant came into possession by permission of the plaintiff or admits the plaintiff's title or is estopped from denying the plaintiff's title. The legal representative of a tenant holding over is a mere trespasser. [See Vadapalli Narasimham V/s. Dronamraju Seetharamamurthy (1907) ILR 31 M 163 : 18 MLJ 26]. And in her written statement the defendant definitely challenges the plaintiff's title and sets up title in herself. There is, therefore, no contractual relationship between the plaintiff and the defendant on the footing on which the suit is based, and the question of title cannot be avoided. Plaintiff has first of all to establish that he is the lawful owner of the land before he can sue for damages for use and occupation. It is true that the defendant pleads in the alternative payment of maktha cist to the plaintiff yearly but it is not the plaintiff's case that there was any kabuliat between himself and defendant on which such maktha became payable. Hence this is not a case similar to those in Vira Pillai v. Rangaswaml Pillai (1898) ILR 22 M 149 and Subba Rao V/s. Sitaramayya (1900) ILR 24 M 118 : 11 MLJ 26 in which the defendant had, in the first instance, entered on the land with the permission of the plaintiff or the plaintiff's predecessors-in-title and therefore the question of title was not in issue.