Muthukarppa Chetty and Another and Chidambara Thevan and Another vs Sakkara Thevan and Others

Best, J.—The suit is for the share claimed by plaintiff as Melvaram of land cultivated by 1st and 2nd defendants and alleged to have been

wrongfully taken by the other defendants.

It is contended on behalf of the defendants that the suit was not mantainable in the Small Cause Court being a suit for the profits of Immovable

property wrongfully received by defendants 4 and 5 and therefore within Clause 31 of Soh. 11 of Act IX of 1887; and secondly that the suit as

against 1st and 2nd defendants is not maintainable in any Court in the absence of exchange of puttah and muchilka as required by Section 7 Act

VII of 1895 Madras. The former contention is supported by the decision of the Bombay Hige Court in Damodar Gopal Dikshal v. Chintamon

Balkrishna Kurai ILR (1892) B. 42 where it is said "" If the plaints had alleged that the defendant had wrongfully received the plaintiff''s share of

profits then no doubt the suit would have fallen under Clause 31 of Schedule II.

As to the second objection, it is urged on behalf of the plaintiff that it has not been usual hitherto to exchange puttahs and Muchilikas. But that is

clearly no answer when the absence of such compliance with a distinct rule of law is pleaded in a suit.

Both the objections being valid the decree of the District Munsif must be set aside and the suit dismissed with costs throughout of defendant 1,

2, 4 and 5 by whom these two petitions Nos-646 and 641 of 1893 have been presented.