1. The question in this application is whether the suit by the opponents against the defendant No. 2, petitioner, fell under the second schedule Article 85, Clauses (ii), of the Provincial Small Causes Courts Act IX of 1887 and was beyond the jurisdiction of the Court of Small Causes.
2. The plaintiffs alleged that defendants Nos. 1 and 2 were annual tenants and without their permission wrongfully cut certain trees belonging to them and claimed damages to the extent of the alleged value of the tress. The defendants pleaded that they were permanent tenants and that the trees had been planted by their ancestors and belonged to them. The Small Causes Court held in favour of the plaintiffs. The defendant No. 2 applies in revision.
3. It is argued for the petitioner that the claim in substance is for compensation for an act which, apart from the defence of bona tides under Chapter IV of the Indian Penal Code, would be theft or mischief under Chapter XVII of that Code, and therefore falling under Article 35, Clause (ii), of the Provincial Small Causes Courts Act; and as in Ayub Haji v. Jainvddin (1925) 28 Bom. L.R. 540, the suit is outside the jurisdiction of that Court. It is contended for the opponents that the claim was for the value of the trees, no criminal act was alleged and no objection to jurisdiction was taken in the trial Court and under Section 99 of the Civil Procedure Code the decree of the trial Court should be confirmed.
4. The objection is as regards jurisdiction and Section 99 of the Civil Procedure Code has no application. As is pointed out in a recent case, Deoki Rai v. Harakh Narain Lal I.L.R. (1926) 49 All. 85 it is not easy to reconcile the various decisions on the present point. In Puttan-gowda v. Nilkanih Kalo Deshpande I.L.R. (1913) 37 Bom. 675 : S.C. 15 Bom. L.R. 773 it was held by a Full Bench of this Court that a Court of Small Causes could entertain a suit, the principal purpose of which was to determine a right to immovable property, provided the suit in form did not ask for that relief but for payment of a sum of money. Prima facie, the present suit does not in form ask for the determination to a right to immovable property as a relief but only for payment of a sum of money and, if so, it would be cognizable by the Court of Small Causes, unless, as was held by Macleod C. J. sitting singly in Ayub Haji v. Jainuddin : (1926)28BOMLR540 the claim fell within Article 35, Clause (ii), of the second schedule. Whether it does or does not so fall is prima facie a matter upon the pleadings and particularly upon the plaint. But the question whether suits which involve a right to immovable property are more appropriately tried by way of regular suits or by Court of Small Causes is not now open to question after the decision of the full bench in Puttangowda v. Nilkanth Kalo Deahpande. The same view has been taken in other Courts : Ramprosad Pramanik v. Sricharan Mandal (1917) 21 C.W.N. 1109 and Nabi Bakhsk v. Muhammad Ali (1921) III L.L.J. 380.
5. In the present case the plaintiffs undoubtedly alleged that the defendants had wrongfully cut his trees. They did not, however, as in Allahabad case of Deoki Rai v. Harakh Narain Lal, allege any criminal intention or act. Speaking for ourselves, we are of opinion that the mere allegation that the trees were of the plaintiffs' ownership and were cut down does not suffice for either litigant to contend in revision that it is tantamount to an allegation of an offence falling under Chapter XVII of the Indian Penal Code, The contention of the petitioner in the present case in effect comes to this, that the plaint implicitly amounts to such an allegation, even though he himself did not so construe it in the trial Court, much less set up Chapter IV in self-defence. It is not in our opinion open to an unsuccessful litigant to raise in revision a new plea of this character even as regards his own pleading, much less in regard to the pleading of his successful adversary. We are of opinion, therefore, that the facts stated in the plaint do not clearly fall within Article 35, Clause (ii), of the second schedule of the Provincial Small Causes Courts Act. The application fails and the Rule is discharged with costs.