Authored By : John Freeman Norris, Beverley

John Freeman Norris and Beverley, JJ.

1. In second appeal the only point urged is that the Judgewas wrong in holding that a certain petition, upon which the Munsif had relied,was inadmissible in evidence by reason of its not having been formally proved.

2. The learned pleader for the respondents raised apreliminary objection that as the suit was of the nature cognizable by a Courtof Small Causes, and the subject-matter did not exceed Rs. 500, no secondappeal lay.

3. For the appellant it was contended that the suit was one"for the profits of Immovable property belonging to the plaintiff whichhad been wrongfully received by the defendants," which by virtue ofArticle 31 of schedule II of Act IX of 1887 is exempted from the cognizance ofa Court of Small Causes.

4. The learned pleader for the respondents relied upon thefollowing cases viz. Ram Peari Debia v. Dinonath Mookerjee 10 W.R. 375 BheenuckLall Mahton v. Rung Lall Mahton 11 W.R. 369 and Makhan Lall Datta v. GoribullahSardar I.L.R. 17 Cal. 541. For the respondents the case of Krishna Prosad Nagv. Maizuddin Biswas I.L.R. 17 Cal. 707 was relied on.

5. The cases in the Weekly Reporter were cases under therepealed Act of 1865, Section 6 of which enacted that the following suitsshould be cognizable by Courts of Small Causes, viz., "claims for moneydue on bond or other contract, or for rents, or for personal property or forthe value of such property, or for damages when the debt, damage or demand doesnot exceed in amount or value the sum of five hundred rupees, whether onbalance of account or otherwise". In Ram Peari Debia v. Dinonath Mookerjee10 W.R. 375 MACPHERSON and BAYLEY, JJ. held that a suit for mesne profits only,no question of title or right arising in it, was within the meaning of thissection, and that if the amount claimed did not exceed Rs. 500, by virtue ofSection 27 ofXXIII of 1861, no special appeal lay. The facts of the caseare not given. In Sungram Singh v. Juggun Singh 2 N.W.P. 18 it was held that asuit for assessed mesne profits, within the pecuniary limits of Section 6 ofthe repealed Act, was a suit for damages and therefore cognizable by a Court ofSmall Causes.

6. In Krishna Prosad Nag v. Maizuddin Biswas I.L.R. 17 Cal.707 the learned Judges say that the case of Sungram Singh v. Juggun Singh 2N.W.P. 18 "has never been followed". In one sense this is no doubtcorrect, for it was decided after the case of Ram Peari Debia v. DinonathMookerjee 10 W.R. 375; but with all due respect, the dictum is somewhatmisleading, for the case of Ram Peari Debia v. Dinonath Mookerjee distinctlydecided that a suit for mesne profits within the pecuniary limits of Section 6of the repealed Act was a suit for damages, and therefore cognizable by a Courtof Small Causes. The case of Bheenuck Lall Mahton v. Rung Lall Mahton 11 W.R.369 is not in point. That was a suit for damages for carrying away standingcrops. It was contended that Section 6 of the repealed Act was limited todamages in respect of moveable property alone, and that standing crops wereImmovable property. The Court held that the section made no distinction betweensuits for damages to moveable property and suits for damages to Immovableproperty.

7. The case of Makhan Lall Datta v. Goribullah Sardar I.L.R.17 Cal. 541 came before this Court upon a reference from the Judge of the SmallCause Court of Sealdah, and no one appeared on the reference. In that case theplaintiff sued for Rs. 20 as damages for use and occupation of his land by thedefendant for three months, alleging that the defendant had occupied the landfor that period without his consent, and had used some of the earth for makingwall sidings. The learned Judges (Tottenham and Ameer Ali, JJ.) held that thesuit was cognizable by a Court of Small Causes.

8. The case of Krishna Prosad Nag v. Maizuddin Biswas I.L.R.17 Cal. 707 came before the same learned Judges. It was a suit for damages forcutting and carrying away grass growing on plaintiffs land. The defendantcontended that such a suit was one "for the profits of Immovableproperty...wrongly received by the defendant". This contention wasoverruled. It was held that "article 31, schedule II of Act IX of 1887does not except from the jurisdiction of a Court of Small Causes suits fordamages for trespass and for the forcible appropriation of crops or the produceof land". This was sufficient for decision of the case; but the learnedJudges go on to discuss the question whether a suit for mesne profits is now,whatever may have been the case under the of 1865, cognizable by a SmallCause Court, and they express a strong opinion that it is not so cognizable.

9. From that opinion, as at present advised, we are notprepared to differ, and we must therefore hold that the preliminary objection fails.As intimated in the course of the argument, we think that, having regard to thecircumstances under which it was filed and used in the first Court, theplaintiff should have an opportunity of proving the petition relied on. Wetherefore direct the District Judge to take such evidence as the plaintiff mayproduce to prove the petition, and to return his finding upon such evidence tothis Court at his earliest convenience.

10. The appellant must pay the costs of this appeal.

11. The costs of the suit in the lower Courts and of thetaking of the further evidence will be dealt with after the Judges finding hasbeen returned to this Court.

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Sriram Samanta vs.Kalidas Dey and Ors. (02.03.1891 -CALHC)