KAMAL KRISHNA SANYAL Vs. MADHUSUDAN CHOUDHURI

JUDGEMENT

(1.) This is an appeal by the plaintiff and arises out of an action brought by him for damages for misappropriation of a mohua tree which stood on the land of defendant 2 and which the plaintiff had foiled for his own use. The defence of defendant 2 was that the mohua stood on his mokarari mourasi jote under the plaintiff's zamindari and he was entitled to the timber of the tree both under law and under a local custom. The Munsiff held that defendant 1 was an occupancy raiyat and was not entitled to appropriate trees without the landlord's permission and that there was no custom-overriding the general law in favour of Madhusudan and he decreed the plaintiff landlord's suit. Against this decision an appeal was taken to the Court of the Subordinate Judge Rajshahi with the result that the appeal was allowed and plaintiffs suit was dismissed. A second appeal has been, taken to this Court by the plaintiffs.

(2.) A preliminary objection has been taken by the learned vakil for the respondent to the hearing of this appeal. It has been argued that the suit being, of a Small Cause Court nature and having been valued at less than Rs. 500 is barred by Section 102, Civil P.C. It seems to me that the preliminary objection must prevail and second appeal No. 1004 is dismissed. The plaintiff, however, has put in an application for revision in the alternative. It is said that as the suit was of a Small Cause-Court nature and although it was tried by a Munsiff under the ordinary procedure as there was a Small Cause Court in the district which could try suits up to the value of Rs. 50 no appeal lay to the Subordinate Judge and in support of this petition for revision the following case was relied on : viz., Mohini Mahan Roy V/s. Ramdas Paramhansa A.I.R. 1324 Cal. 487. In my opinion this decision supports the contention of the plaintiff applicant before me. The Subordinate Judge had no jurisdiction to entertain the appeal. Prima facie when a Court is faced with a decree which is made without jurisdiction it is a very strong thing not to interfere in revision because otherwise all sorts of trouble may arise. On the merits I think this is a case in which I ought to interfere. It is now well settled that the right to the timber is in the landlord and the defendant had no right to misappropriate the tree. The decree of the Subordinate Judge is set aside and that of the Munsiff restored with costs which I assess at one gold mohur. Appeal No. 1005. The suit in which this appeal arises was brought by the plaintiff, now respondent, for recovery of Rs. 200 as damages from the defendants, now appellants. The case stated in the plaint is that the defendants landlords had entered unlawfully on the land of the plaintiff and had unlawfully felled the mahua tree which stood in his mourasi mokarari jote. The allegation in the plaint clearly amounts to criminal trespass and mischief within the meaning of Chap. 17,1. P.C. The defence of the appellants raised two grounds, (i) Madhu the plaintiff had no mourasi mokarari jote right in the lands; (ii) and no right whatever in the tree. The Munsiff upheld the first ground of defence but negatived the second and decreed the respondent's suit for Rs. 40 only. On appeal the Subordinate Judge affirmed the Munsiff's decision.

(3.) A second appeal has been taken to this Court by the defendants. A preliminary objection has been taken to the hearing of this appeal on the ground that the suit was one of a Snail Cause Court nature and the second appeal was consequently barred by Section 102, Civil P.C. It seems to me that the preliminary objection is not well founded. The allegations in plaint make the acts of the defendant one of trespass and mischief and this suit being for compensation for acts which fall within Chap. 17, I.P.C., are clearly exempt from the jurisdiction of the Court of Small Causes : see Art. 35 of Schedule to the Provincial Small Causes Court Act (9 of 1887). It has been argued by the learned; vakil for the respondent that the defence of the defendant shows that the act of the defendants were done bona fide in the assertion of a claim and the allegations in the plaint taken with the defence take the acts out of the definition of trespass and mischief as defined in the Indian Penal Code, but the answer to this contention is that the nature of the suit doe not depend on the defence but has to be judged from the allegations in the plaint. That being so, the suit as laid in the plaint was not a suit of a Small Cause Court nature. The preliminary objection must therefore be overruled.