SAHERALI MOLLA Vs. BHOLA MOLLA

JUDGEMENT

(1.) The petitioner before us brought a suit for damages against the defendant for wrongfully catching and taking away fish from a tank in which the plaintiff said he had 8-annas share of which he was in possession.

(2.) The suit was instituted in a Court of Small Causes. The defendant denied the title and possession of the plaintiff and set up various defences to the action, which it is unnecessary to refer to except that contained in the third paragraph of the written statement, where the defendant pleaded that the suit was not maintainable in a Small Cause Court as there were complicated questions of title involved in the suit. Upon this objection the plaint was returned by the Small Cause Court Judge to the petitioner for presentation to the proper Court. Probably the Court intended to proceed under Section 23 of the Provincial Small Causes Courts Act, which provides that when the right of a plaintiff and the relief claimed by him in a Court of Small Causes depend upon the proof or disproof of a title to immoveable property or other title which such Court cannot finally determine, the Court may at any stage of the proceedings return the plaint to be presented to a Court having jurisdiction to determine the title. However that may be, the suit was tried by the Munsif in his ordinary jurisdiction. Several issues ware raised, two of them being whether the plaintiff had title to the disputed property and whether the story of plaintiff s possession was true. Both parties adduced evidence on the questions of title and possession and those questions were gone into by the Munsif, who decided them in favour of the plaintiff.

(3.) The defendant then appealed and the learned Subordinate Judge held that the question of title ought not to have been gone into in such a suit and dismissed the suit.