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Kalian Dayal and ors. Vs. Kalian Narer and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMumbai
Decided On
Judge
Reported in(1885)ILR9Bom259
AppellantKalian Dayal and ors.
RespondentKalian Narer and ors.
Excerpt:
small cause court suit - jurisdiction--suit for declaration of right to moveable property wrongfully taken--small cause court suit instituted in am ordinary court, effect of--second appeal--civil procedure code (act xiv of 1882), sec.586. - - they seek, therefore, to have the vessels given over by the defendants to a person who should hold them to the use of the plaintiffs as well as of the defendants......wherever instituted, and a second appeal in such, a cause is excluded by section 586, code of civil procedure. no second appeal, therefore, lies in this case, and the one before us must be dismissed. but it appears also that as there is a small cause court at broach, when the suit was instituted, the ordinary courts had not, in fact, jurisdiction, and we must pronounce their proceedings null throughout. the costs of each party in all the courts are to be paid by himself.3. plaint to be returned for presentation in small cause court.
Judgment:

West, J.

1. The position of the plaintiffs in this case, expressed in terms of the English law, appears to be that they, as co-members of a division of a caste along with the defendants, and, as such, tenants-in-common with them of certain cooking vessels, are excluded by the defendants from a co-possession, and common use of those vessels. They seek, therefore, to have the vessels given over by the defendants to a person who should hold them to the use of the plaintiffs as well as of the defendants. As auxiliary to this aim of their suit, the plaintiffs no doubt seek to establish their title against the exclusive user assumed, as they say, by the defendants, and on this it has been contended that the suit is one for a declaratory decree, or for that coupled with an injunction. It is not more a suit for a declaration, however, than every suit is one as asserting a right which the Court has to recognize and declare as a basis for the relief claimed in virtue of an alleged infringement of the right. Where possession has been wrongfully taken, and the suit is for restoration, either to the plaintiff directly, or to some one wholly or partly as agent for him, it is & suit for property within the meaning of the Small Cause Court Act. If the property is moveable and of less than Rs. 500 in value, the suit is then a small cause, and such, we think, is the character of the suit in this case.

2. It was urged, on the authority of Dyebukee Nandun Sen v. Mudhoo Mutty Goopta I.L.R. 1 Cal. 123 that though actually a 'small cause' the present suit having been instituted and dealt with in the ordinary Court, that circumstance involved the consequence that a second appeal would lie. But the case in this Court-Musa Miya Saheb v. Sayad Gulam Husein Mahamad Printed Judgments for 1882, p. 240-ruled that the nature of the cause is not variable in any way according to the Court in which it is brought. A small cause is such wherever instituted, and a second appeal in such, a cause is excluded by Section 586, Code of Civil Procedure. No second appeal, therefore, lies in this case, and the one before us must be dismissed. But it appears also that as there is a Small Cause Court at Broach, when the suit was instituted, the ordinary Courts had not, in fact, jurisdiction, and we must pronounce their proceedings null throughout. The costs of each party in all the Courts are to be paid by himself.

3. Plaint to be returned for presentation in Small Cause Court.


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