ORDER
Sulaiman, J.
1. This is a defendant’s appeal arising out of a suit for Rs. 49, the price of a nim tree cut away by the defendant. In paragraph 3 of the plaint, the plaintiff alleged that the defendant-appellant unlawfully colluded with the other defendant and forcibly cut and appropriated the said tree without any right in spite of the remonstrances of the plaintiff’s servant. In his defence the contesting defendant admitted the cutting away of the tree, but denied the rest of the allegations. He set up the plea that this tree along with other trees, had been planted by his ancestors and had been possessed by the defendant for a long number of years and that he had proprietary possession over it. The Honorary Munsif, who triad the case, did not dispose of it in quite a satisfactory way. He however decreed the claim. The learned Judge has admitted that the issues framed by the lower Court were not correct but thought that inasmuch as the appellant had no case at all on his own admission, he need not send the matter beck for re-trial. The learned Judge recorded no finding as to whether the tree had been planted by the defendant’s ancestors or whether it had been in possession of the defendant. He came to the conclusion that in the absence of any provision in the wajib-ul-arz or any other rule of law or right, the defendant could not claim title to this tree, which had been standing on the a badi land. A second appeal has been preferred and a preliminary objection is taken on behalf of the respondent that no second appeal lies. There is undoubtedly, some conflict of opinion on this question. The Provincial Small Cause Courts Act has been amended and Sub-clause (ii) has been added to Clause 35, and Clause 43(A) added to Clause 43. Under Clause 35(ii) a suit for compensation for an act which is or, save for the provisions of Ch. 4 of the Indian Penal Code, would be an offence punishable under Ch. 17 is exempted. Similarly under Clause 43(A) a suit to recover property obtained by an act which is or which would be such an offence is also ex-empted.
Lindsay, J. In the case of Kunwarpal v. bakhshi Madan Mohan AIR 1923 All 428 took the view that where the defendant had denied that any offence had been committed and where he himself was the applicant, it did not lie in his mouth to say that the act in respect of which the suit was brought was an act amounting to an offence. He further held that, where a parson had cut away trees in the exercise of his alleged right, claiming the trees to be his own, he cannot be said to be committing the offence either of theft or of mischief. In the case of Sundar Ram v. Ram Het AIR 1925 All 130 Dalal, J. admitted that there was a conflict of authorities in this case as to the interpretation of Article 35(ii). He decided the case, before him on the finding that on the facts of that case the defendant could not have been charged of an offence of theft, because he acted under a claim to the property. The paper-book in that case does not show whether the property had been removed from the custody of the trustee without his consent or whether there were any allegations in the plaint suggesting the commission of an offence. In the case of Dildar Hossain v. Sadaruddin Choudhri AIR 1923 Cal 568 a Bench of the Calcutta High Court also took the view that the criminality of the act of the defendants would depend on the intention with which this act was done. On the other hand Rafique, J., in the case of Dukhi v. Dhanni Misir AIR 1923 All 543, held that the case before him fell under Article 35(ii) although there too the defendant was resisting the plaintiff’s claim and denying his allegations. Kanhaiya Lal, J., in the case of Man Singh v. Madho Singh AIR 1924 All 430 held that the allegations of the plaintiff amounted to a charge of criminal misappropriation and Clause 35(ii) was applicable. In that case, however, as one of the reliefs was a recovery of the word he also held that Clause 43(A) was similarly applicable.
3. I may refer to two more cases, which however were disposed of on a slightly different ground. In the case of Mathura v. Raghunath Sahai AIR 1920 All 137 and Kunwar Singh v. Ujagar Singh AIR 1921 Oudh 144, the allegations in the plaints did not disclose that any criminal offence had been committed by the defendants.
4. It seems to me that this is a fit case to be referred to a Division Bench. If there were not so much conflict of opinion, I would have been inclined to hold that in order to decide whether a suit is one of a Small Cause Court nature or not, one should refer to the allegations of the plaintiff contained in the plaint. If those allegations make out a case, which is exempted, it is immaterial what the defence raised is and what the actual findings arrived at by the Court are. If the defendant were held to be estopped from contending that the suit was exempted from the cognizance of the Small Cause Court, merely because he had not admitted the commission of any offence, the result would be that the plaintiff would always be entitled to prefer a second appeal if the decision went against him, but the defendant would be estopped from doing so. I doubt very much whether such a contingency could have been contemplated by the Legislature. On the other hand, it is urged that there may be some doubt in holding that a suit for recovery of the price of a tree already cut away is a suit for compensation for an act which is an offence under the Indian Penal Code. In case of suits for compensation for criminal trespass or mischief, for instance, it is conceded that there will be no difficulty in holding that the suit is one for compensation for an act, which is an offence; but it is contended that suits for recovery of the price of the goods cut away or misappropriated cannot without some difficulty be held to be suits for compensation for an act which is an offence. It must, however, be conceded that the intention of the Legislature in amending the Small Cause Courts Act appears to have been to take away cases, where serious allegations amounting to the commission of an offence are made, from the ordinary jurisdiction of a Small Cause Court.
5. I accordingly refer this case for decision to a Bench of two Judges.
6. A preliminary objection is taken that no second appeal lies. In my order of reference. I referred to some rulings showing that there has been a conflict of opinion. It is not necessary to mention them over again. In that order I suggested that in order to decide whether a suit is one of a small cause nature or not, one should refer to the allegations of the plaintiff as contained in the plaint. If those allegations make out a case, which is excepted, it is immaterial what the defence raised is, or what the actual findings arrived at by the Courts below are. I pointed out that, if the defendants were held to be estopped from contending that the suit was not cognizable by a Court of Small Causes merely because they themselves had not admitted that any offence under Chapter 17 of the I.P.C. had been committed, the result would be that the plaintiff may be entitled to prefer a second appeal, if the decision went against him, but the defendant would be estopped from doing so. I doubted if such a contingency could have been contemplated by the Legislature. I still adhere to the same view. All that we have to see is whether the suit as brought was one cognizable by a Court of Small Causes. This can be ascertained only by examining the allegations made in the plaint. If the plaint as drafted was not entertainable by a Court of Small Causes, it must be held that the suit was not of a Small Cause Court nature, irrespective of anything that might have been subsequently put forward in defence or found by the Court.
7. As to the contention that Article 35(ii) must be confined to cases where the suit is for compensation for the offence itself and not for the compensation for loss occasioned by the offence, I admit that the language of this clause might have been made clearer. The argument is permissible merely because the language is not happy. But I have no doubt in my mind that it was intended to cover all suits for compensation for loss occasioned by an offence under Chapter 17 of the I.P.C. The object seams to be to take away cases, where serious allegations amounting to the commission of an offence are made, from the cognizance of the Courts of Small Causes. If we were to adopt the contention urged on behalf of the respondents, the result would be that, with the exception of perhaps suits for compensation for trespass or mischief, all suits for compensation for property taken away by dacoity, robbery, burglary, theft, extortion, etc., would be cognizable by a Court of Small Causes. This would destroy the very utility of the provision. I am further fortified in this view by the fact that in many cases decided by the various High Courts, it has been assumed, though not expressly decided, that suits for compensation for properties removed by theft or misappropriation come under Section 35(ii).
8. In the present case the allegations in the plaint are that the defendants unlawfully colluded with each other and forcibly cut and appropriated the said tree without any right in spite of remonstrances of the plaintiff’s servants. These aliegations undoubtedly make out an offence of theft and mischief. The suit was therefore excluded from the jurisdiction of a Court of Small Causes and therefore a second appeal lies.
Boys, J.
9. I agree. The matter is, in my opinion, very simple though, in view of the language used in certain of the decisions quoted in my brother’s order of reference it was necessary to refer the case to a Division Bench.
10. There can be no question but that the jurisdiction of the Court has to be determined in the first place by a reference to the plaint that which is exempted from the jurisdiction of the Small Cause Court is “a suit” of a certain nature, To determine of what nature. “the suit” is we have obviously got to see what is sued for, and that brings us to the plaint, and there is no need to go any further.
11. Next we have to see whether the facts alleged in the particular plaintiff the facts bed been alleged before a Magistrate-would have justified a Magistrate in holding that there were allegations of an offence coming within one or other of the definitions in Chapter 17 of the Penal Code.
12. In this cage the plaint alleges that the plaintiff was the owner of a nim tree with which the defendants had no concern; that the defendants forcibly cut and appropriated the tree; and that the defendants committed this act after un lawfully conspiring together.
13. Here we have clearly set out the elements necessary to constitute the offence of theft and mischief. The defendants were alleged to have deliberately with the intention of causing wrongful gain to themselves, that is, dishonestly taken moveable property, i.e., the wood after it had been cut (vide Explanations I and 2 to Section 378) out of the possession of the plaintiff. The defendants were further alleged by the plaintiff to have knowing that they were likely to cause wrongful loss to the plaintiff, caused the destruction of the tree and thereby were clearly alleged to have committed mischief within the meaning of Section 425 of the Penal Code, There is clearly a suit for compensation for an act which is an offence punishable under Chapter 17 of the Penal Code. It is suggested that the suit must be one for compensation “for the value of a tree.” It is obvious that no plaintiff has any interest whatever in the mere cutting of a tree; it is only in this aspect of its causing damage or loss to him in one or another that he in interested. I have no hesitation in holding that the case was one exempted from the cognizance of a Court of Small Causes, and that a second appeal lies.
14. On the merits we are of opinion that this case must go beck. The learned Judge has conceded that the issues framed by the Honorary Munsif were not correct. We might add that on the pleadings they were not comprehensive enough. The learned Judge however has declined to send the matter beck for re-trial on the ground that the appellant has no case at all on his own admission. This, in our opinion, is not a correct view to take. The defendant in his written statement pleaded that his ancestor had planted the tree in question and he had been in exclusive possession of it for a large number of years and had a right to cut it and appropriate it. He, in fact, put forward a general right; to appropriate sair items in that village.
15. There is no admission of the defendant which would be fatal to his defence. We accordingly direct that this appeal should be allowed and the decree of the Courts below set aside and the case sent beck to the trial Court through the lower appellate Court for disposal according to law. We further direct under Order 41, Rule 23 of the Code of Civil Procedure that the following issues should be framed and tried:
(1) Did the defendant or his ancestor plant the tree in question, and if so, when; or is it self-sown?
(2) Has the defendant been in possession of the tree in question for more then 12 years, and, if so, what is the effect thereof?
(3) Has the defendant, as a tenant, any right by custom or otherwise to cut and appropriate the tree in question?
15. Parties will be at liberty to adduce further evidence. The costs will abide the event.
