SRINATH ROY Vs. TARAPRASANNA ROY

JUDGEMENT

(1.) THIS Rule was issued on the opposite party to show cause why the decree of the Small Cause Court Judge of Barisal, dated the 23 August 1926 should not be set aside. THIS Rule lias been obtained by the defendant and the main ground on which it is contended that the decree of the lower Court should be set aside, is that the suit was not cognizable by the Court of Small Causes. The suit to which this Rule relates was commenced by the plaintiffs for realizing the profits of homestead land in which there were a number of fruit trees and other trees, which had been taken by the defendant. The allegation in the plaintiff's plaint is that there was a previous suit between them and the present defendant for declaration of title and joint possession. The plaintiffs purchased the interest of an 8 annas co-sharer in the homestead and the other Hannas share belongs to the defendant. The Court which tried the title suit, gave a decree in their favour for a declaration of title to a half share in the homestead but refused to give them joint possession in view of the provisions of Section 14 of the Transfer of Property Act. In that suit beyond declaring the plaintiffs title the Court also awarded a certain sum as compensation to the plaintiffs, The present suit was instituted in the Court of Small Causes for compensation due to the plaintiffs as the price of betel nuts and other fruits which had been taken by the defendant since the decree in the title suit. It is argued on behalf, of the defendant petitioner that the Small Cause Court has no jurisdiction to entertain such a suit as such a suit is exempted by Art. 31 of the Second Schedule to the Provincial Small Cause Courts Act from the cognizance of Small Cause Courts. It is stated that profits of the land belonging to the plaintiffs have been wrongfully taken by the defendant. It is necessary therefore to examine the precise allegation in the plaint. In paragraph 4 of the plaint, the allegation is that the defendant did divide the share of the fruits of trees which he himself appropriated. The case does not seem to me to be one of wrongful receipt of the fruits. It seems to me to be a case where the defendant is said to have rightfully received the fruits but wrong full retained the same. Consequently in my opinion, the provisions of Article 31 are not applicable to this case.

(2.) THERE is also another difficulty in plaintiff's way. The suit as framed is not framed as a suit for account; and Art. 31 contemplates that a suit in order to be a suit for account, which will include a suit for the profits of immovable properties belonging to the plaintiffs, but which have been wrongfully received by the defendant. Here the suit is not for an account but for a specified sum representing the price of fruits taken. Consequently to such a suit Art. 31 cannot be held to apply. See Damodar Gopal Dikshit V/s. Chintaman Balkrishna Karve [1893] 17 Bom. 42 and the case of Kesrisang Banesang V/s. Naransang Mannabhai [1903] 32 Bom 560. In either view of the case, even if we read into the plaintiffs plaint an allegation of wrongful receipt by the defendant. I think it would not suffice to bring the suit within the operation of Clause 31, for reason that that clause requires as a condition precedent to its applicabilty that the suit be a suit for an account and the present suit is not a suit for an account. In this view I think the Small Cause Court Judge had jurisdiction to entertain the suit, and Rule must be discharged with costs. I assess the hearing fee at two gold mohurs.