DEOKI RAI Vs. HARAKH NARAIN LAL

JUDGEMENT

(1.) This is a defendant's appeal arising out of a suit for Rs. 49, the price of a nim tree cut away by the defendant. In paragraph 3 of the plaint, the plaintiff alleged that the defendant-appellant unlawfully colluded with the other defendant and forcibly cut and appropriated the said tree without any right in spite of the remonstrances of the plaintiff's servant. In his defence the contesting defendant admitted the cutting away of the tree, but denied the rest of the allegations. He set up the plea that this tree along with other trees, had been planted by his ancestors and had been possessed by the defendant for a long number of years and that he had proprietary possession over it. The Honorary Munsif, who triad the case, did not dispose of it in quite a satisfactory way. He however decreed the claim. The learned Judge has admitted that the issues framed by the lower Court were not correct but thought that inasmuch as the appellant had no case at all on his own admission, he need not send the matter beck for re-trial. The learned Judge recorded no finding as to whether the tree had been planted by the defendant's ancestors or whether it had been in possession of the defendant. He came to the conclusion that in the absence of any provision in the wajib-ul-arz or any other rule of law or right, the defendant could not claim title to this tree, which had been standing on the a badi land. A second appeal has been preferred and a preliminary objection is taken on behalf of the respondent that no second appeal lies. There is undoubtedly, some conflict of opinion on this question. The Provincial Small Cause Courts Act has been amended and Sub-clause (ii) has been added to Clause 35, and Clause 43(A) added to Clause 43. Under Clause 35(ii) a suit for compensation for an act which is or, save for the provisions of Ch. 4 of the Indian Penal Code, would be an offence punishable under Ch. 17 is exempted. Similarly under Clause 43(A) a suit to recover property obtained by an act which is or which would be such an offence is also ex-empted.

(2.) Lindsay, J. In the case of Kunwarpal V/s. bakhshi Madan Mohan AIR 1923 All 428 took the view that where the defendant had denied that any offence had been committed and where he himself was the applicant, it did not lie in his mouth to say that the act in respect of which the suit was brought was an act amounting to an offence. He further held that, where a parson had cut away trees in the exercise of his alleged right, claiming the trees to be his own, he cannot be said to be committing the offence either of theft or of mischief. In the case of Sundar Ram V/s. Ram Het Dalal, J. admitted that there was a conflict of authorities in this case as to the interpretation of Art. 35(ii). He decided the case, before him on the finding that on the facts of that case the defendant could not have been charged of an offence of theft, because he acted under a claim to the property. The paper- book in that case does not show whether the property had been removed from the custody of the trustee without his consent or whether there were any allegations in the plaint suggesting the commission of an offence. In the case of Dildar Hossain V/s. Sadaruddin Choudhri AIR 1923 Cal 568 a Bench of the Calcutta High Court also took the view that the criminality of the act of the defendants would depend on the intention with which this act was done. On the other hand Rafique, J., in the case of Dukhi V/s. Dhanni Misir AIR 1923 All 543, held that the case before him fell under Art. 35(ii) although there too the defendant was resisting the plaintiff's claim and denying his allegations. Kanhaiya Lal, J., in the case of Man Singh V/s. Madho Singh AIR 1924 All 430 held that the allegations of the plaintiff amounted to a charge of criminal misappropriation and Clause 35(ii) was applicable. In that case, however, as one of the reliefs was a recovery of the word he also held that Clause 43(A) was similarly applicable.

(3.) I may refer to two more cases, which however were disposed of on a slightly different ground. In the case of Mathura V/s. Raghunath Sahai AIR 1920 All 137 and Kunwar Singh V/s. Ujagar Singh AIR 1921 Oudh 144, the allegations in the plaints did not disclose that any criminal offence had been committed by the defendants.