Govind Rai vs Digbijoy Singh and Another

Varma, J.—This is an appeal on behalf of the defendant against whom a suit was filed by the plaintiff-respondents for damages for having cut away certain trees wrongfully and without consent of the landlord from a plot of land known as khata No. 322 of village Bahrampur in the district of Monghyr. It is said that the trees were cut on 4th February 1934. The case for the defendant was that he had a right to the trees but that he had nothing to do with the cutting which was done by one Babuji Issar. The trial Court came to the conclusion that the case of {the plaintiffs had not been made out and therefore dismissed the suit.

On appeal the learned District Judge held that the story of the defendant that the trees were out by Babuji Issar was not convincing as the respondent is the tenant of the holding. The learned District Judge relied on a certain document filed by the appellant at the appellate stage. So far as the actual cutting of the trees is concerned, he came to the conclusion that this was done by the appellant and not by the Babuji Issar.

The only question that has been raised in second appeal is whether the suit should have been tried as a small cause Court suit. Both the Courts below were of opinion that this was not a case which should have been so tried. The trial Court says:

The learned pleader for the defendant argued In the first place that the suit was not maintainable in this Court. It could be maintained only in a Court having Small Cause court powers. But to my mind the contention does not appeal. Having regard to the forms of the relief claimed, I may say that the suit has been properly styled as a title suit and this Court has therefore jurisdiction to try it.

It may be mentioned that one of the reliefs claimed was for a permanent injunction against the defendant. The lower Appellate Court also held that the case came within the mischief of Article 35(ii) of Schedule 2, Small Cause Courts Act, and was triable under the ordinary procedure. Under that provision.

a suit for compensation for an act which, or, save for the provisions of Oh. 4, Penal Code, would be an offence punishable under Ch. 17 of the said Code.

is excepted from the cognizance of a Court of Small Causes; and Ch. 17, Penal Code, begins with the definition of ''theft''.

Mr. Mathura Prasad, appearing on behalf of the appellant, refers to the decisions in Damodar Jha v. Baldeo Prassd A.I.R.1928. Pat. 575 and Bharosa Singh v. Jhauri Sao A.I.R1936. Pat 428. In those cases, their Lordships took the view that every allegation of removal would not amount to theft, and there may be cases in which the removal was in assertion of a bona fide right. In the first case the position was that a suit was tried by a Court of Small Causes, and the petitioners raised the objection that it was not triable by such a Court, and the learned Judges accordingly went into the matter themselves instead of making a remand and held that the suit was triable by the Court of Small Causes. Now that position does not arise in this case, because in the plaint it was distinctly asserted that the plaintiff was entitled to half share'' in the fruits of the trees, he had absolutely no right in the timber, and the allegation was that without rhyme or reason and without the consent of the plaintiff the trees were out and the wood removed. Looking at the plaint as it stands, I have no reason to differ from the interpretation put upon it by the lower Appellate Court to the effect that the case was triable under the ordinary procedure.

I would therefore dismiss the appeal with costs.