SAKHYA BABA LATAKA Vs. SADASHIV PARSHARAM SATHE

JUDGEMENT

(1.) The question in this application is whether the suit by the opponents against the defendant No. 2, petitioner, fell under the second schedule Art. 85, Clauses (ii), of the Provincial Small Causes Courts Act IX of 1887 and was beyond the jurisdiction of the Court of Small Causes.

(2.) The plaintiffs alleged that defendants Nos. 1 and 2 were annual tenants and without their permission wrongfully cut certain trees belonging to them and claimed damages to the extent of the alleged value of the tress. The defendants pleaded that they were permanent tenants and that the trees had been planted by their ancestors and belonged to them. The Small Causes Court held in favour of the plaintiffs. The defendant No. 2 applies in revision.

(3.) It is argued for the petitioner that the claim in substance is for compensation for an act which, apart from the defence of bona tides under Chapter IV of the Indian Penal Code, would be theft or mischief under Chapter XVII of that Code, and therefore falling under Art. 35, Clause (ii), of the Provincial Small Causes Courts Act; and as in Ayub Haji V/s. Jainvddin (1925) 28 Bom. L.R. 540, the suit is outside the jurisdiction of that Court. It is contended for the opponents that the claim was for the value of the trees, no criminal act was alleged and no objection to jurisdiction was taken in the trial Court and under Section 99 of the Civil Procedure Code the decree of the trial Court should be confirmed.