1. The plaintiff in this case sued the defendants for Rs. 12-11-6 representing his share in the produce of certain immovable property of the value of Rs. 45-0-9 which was collected and lawfully received by the defendant No. 1 in the Samvat year 1957 but which in accordance with the practice of previous years it was his duty to distribute partly to the plaintiff.
2. The case is in all respects similar to that of Damodar Gopal Dikshit v. Chintaman Balkrishna Karve 17 B. 42.
3. It is a suit for money had and received to the plaintiff's use. It does not fall under Clause (4), Schedule II of Act IX of 1837, in that it is not a suit for possession of immovable property or for recovery of an interest in such property, nor does it fall within Clause (31) because it is not alleged that the produce was unlawfully received by the defendant. That being so the suit was cognizable by the Court of Small Causes.
4. Section 16 of the Provincial Small Cause Courts Act provides that 'save as expressly provided by this Act or by any other enactment for the time being in force, a suit cognizable by a Court of Small Causes shall not be tried by any other Court having jurisdiction within the local limits.'
5. By Section 32 of the same Act it is provided that 'so much of Chapters III and IV as relates to the exclusion of the jurisdiction of other Courts in suits cognizable by Courts of Small Causes, applies to Courts invested by or under any enactment for the time being in force with the jurisdiction of a Court of Small Causes.'
6. The plaint in the present suit was filed in the Court of Second Class Subordinate Judge of Dhandhuka and Gogo who was invested with the jurisdiction of a Judge of the Court of Small Causes. He tried the suit and passed a decree in favour of the defendants. That decree under Section 27 of the Provincial Small Cause Courts Act was final.
7. Notwithstanding its finality an appeal was preferred to the District Court of Ahmedabad. The Judge remanded the case and, after the remand order had been complied with again entertained the appeal and passed a decree in favour of the plaintiff for Rs. 11-8-0 and costs.
8. From that decree an appeal was preferred to this Court. But on the appeal coming on for hearing the pleader for the defendants submitted that the decision of the Second Class Subordinate Judge was final under Section 27 of the Provincial Small Cause Courts Act, and that, therefore, the appellate Court of Ahmedabad had acted without Jurisdiction in disposing of the appeal and asked that his second appeal might be taken to be an application under Section 115 of the Civil Procedure Code in revision.
9. It has been contended on behalf of the respondent that a second appeal does lie and that it lies by reason of the conduct of the parties, that as the defendants had not objected to the jurisdiction of the Ahmedabad Court in appeal it was too late for them now to take the paint that there was no appeal from the judgment of the first Court, and in support of that argument reference was made to Suresh Chunder Maitra v. Kristo Rangini Dasi 21 C. 249 and Parameshwaran Nambudiri v. Vishnu Embrandri 27 M. 478.
10. It appears to us that having regard to the decision of the Judicial Committee in Ledgard v. Bull 13 I.A. 134: 9 A. 191 and in Minakshi Naidoo v. Subramaniya Sastri 14 1. A. 160: 11 M. 26 we must accept the argument of the appellant and we must hold that the lower appellate Court had no jurisdiction to try the case and that the conduct of the parties could not give it jurisdiction. The Judicial Committee in the second of the above-mentioned oases at page 166 say: 'It has been suggested, and it is not right altogether to pass that suggestion over, that, by reason of the course pursued by the present appellants in the High Court, they have waived the right which they might have had to raise the question of want of jurisdiction. But this view appears to their Lordships to be untenable. No amount of consent under such circumstances could confer jurisdiction where no jurisdiction exists. Upon this point it may be convenient to refer to the judgment of their Lordships delivered by Lord Watson in the comparatively recent case of Ledgard v. Bull 13 I.A. 134:9 A. 191.'
11. Now we hold upon the words of Section 32 of the Provincial Small Cause Courts Act that the exclusion of the jurisdiction of all Courts not vested in Small Cause Court powers is indicated in express terms, and the position of the appellate Court in Ahmedabad was that it was a Court where, in the words of the Judicial Committee, no jurisdiction existed.
12. We, therefore, set aside the decree of the lower appellate Court and restore that of the Second Class Subordinate Judge, but having regard to the conduct of the appellant we make no order as to costs.