1. The respondent sued the petitioners who were her tenants for damages resulting from their unauthorisedly cutting some trees standing on the leasehold. The suit which was instituted and tried as a small cause suit was decreed though for a smaller amount than that claimed. The petitioners have come up in revision.
2. In addition to challenging the decision in regard to its merits it is urged by the petitioners that the Court of Small Causes had no jurisdiction to try the suit as the claim came under Schedule II of the Provincial Small Cause Courts Act. The specific article relied upon are Articles 4, 11, and 35(ii). It is urged that in seeking to recover the damages for the value of the trees the plaintiff was trying to assert her interest in immovable property, which is covered by Article 4, or she must be regarded as seeking determination or enforcement of her right or interest in the immoveable property, which comes under Article 11, and that in any event the plaint allegations showed that according to the plaintiff the defendants were committing theft or mischief or criminal misappropriation in cutting and appropriating trees which did not belong to them but to theplaintiff. The lower Court took the view that as the suit was one for damages it was triable as a small cause suit.
3. The learned Advocate for the petitioners has referred to several decisions in support of his contention. In Lalu Sardar v. Ohedali, 45 Ind Cas 16: (AIR 1919 Cal 1035 (1)) it was held that a suit to recover the value of paddy forcibly, wrongfully and maliciously cut and taken away by the defendant came under Article 35(ii). It is clear that according to the plaint allegations themselves the defendant had a criminal intention; therefore his acts would constitute one or more of the offences punishable under Chapter XVII of the I. P. C. and hence the suit came under Article 35(ii).
4. In Bir Sen v. Raja Ram 73 Ind Cas 83: (AIR 1924 Lah 71) it was held that the suit which was one for recovery of trees or compensation for the trees which had been sold to the plaintiff but had been removed by the purchasers of the land from the defendant came under Article 35(ii). Beyond that statement there is no discussion; nor is it possible to gather the circumstances of the case. It may be that the facts alleged in the plaint indicated that the defendant acted dishonestly in selling the land to third parties and allowing them to remove the trees after he had sold them to the plaintiff.
5. In Ganesh Das v. Suraj Pal Singh 78 Ind Cas 371: (AIR 1924 All 537) the suit was by a landlord to recover the value of the trees belonging to him cut and removed by the defendant who had purchased them in execution of a decree obtained against the tenant of the plaintiff. Though there is an observation to the effect that the claim came under Article 35(ii) there is no discussion of the matter and the basis of the decision was that it came under Article 35(j).
6. The case reported in Ayub Haji Suleman v. Jainuddin Gulamalli : AIR1926Bom362 related to a claim for compensation for trees unlawfully cut by the defendant. Each of the parties claimed ownership of the trees. Apparently the learned Judge was satisfied that the plaint allegations amounted in substance to complaining that the defendant's act constituted theft or mischief.There were some general observations to theeffect that it was not desirable to extend the jurisdiction of the Court of Small Causes to cases relatingto immoveable property by giving a limited interpredation to suits mentioned in the second scheduleto the Act and that the right of appeal which theparty ordinarily has be taken away from him. Butin the present case it cannot be said that any question relating to the respective rights of the plaintiffand defendants to an interest in immoveable propertyarises.
Articles 4 and 11 seem to be clearly inapplicable. In this connection the decision reported in Tara Kumar v. Monglu Shaik : AIR1937Cal631 may be referred to. It was held in that decision that where a tree has been cut down and sold before the suit for recovery of damages therefor is instituted the tree is no longer attached to the earth or permanently fastened to it and therefore is not immoveable property and that in consequence a suit for damages is not barred by Article 4 of Schedule II of the Provincial Small Cause Courts Act.
7. The only question for consideration is whether the subject-matter of the present suit comes under Article 35(ii). It is no doubt true that according to the allegations in the plaint the petitioners cut the trees wrongfully. But in order to constitute an offence of theft, mischief or misapropriation. criminal intention is a necessary ingredient, A wrong-fill or illegal act is not necessarily motivated by criminal intention.
Unless there are allegations explicitly made in the plaint making out an offence or offences under Chapter XVII of the I. P. C. or the allegations by necessary implication point to the commission of such offence or offences, it cannot be said that the suit would come under Article 35(ii). Support is to be found for this view in several reported decisions. In Raghubar Dayal v. Mulwa : AIR1927All288 it is observed that the clause in question (Clause ii of Article 35) applies only to those acts which by the circumstance of the case are clearly alleged or clearly shown to be punishable by the Penal Code. In Damodhar Jha v. Baldeo Prasad AIR 1930 Pat 575 it has been observed that when the case laid down in the plaint is clear that the defendant had committed an offence punishable under Chapter XVII I. P. C. the jurisdiction of the Small Cause Courts to try such a suit is barred, but that where upon the facts stated in the plaint the case against the defendant is that his act was wrongful or illegal, but not necessarily penal, the jurisdiction of the Court of Small Causes is not barred. A similar view has been expressed in the case reported in Gadadhar Dev v. Rani Bala Dasi : AIR1950Cal109 .
8. As observed in Perumal v. Perumal Reddiar : AIR1947Mad404 , whether a suit does or does not fall within the Article is prima facie a matter to be decided upon the language of the plaint. In that case it was alleged in the plain that the plaintiff gathered tamarind from certain trees and tried to collect the same, that the defendants joined together and unlawfully took away the tamarind and thus caused loss to the plaintiff. It was observed by the learned Judge:
'The learned Advocate for the petitioners wants me to hold by this language that the plaintiff alleges the commission of theft by the defendants as if the plaintiff had stated that the defendants with the dishonest intention of causing unlawful gain to themselves and loss to the plaintiff took away the tamarind'.
The learned Judge did not accept the contention. The language employed in the plaint in the present case also is very similar and it is difficult to read into it an allegation of dishonest or other criminal intention.
9. I am therefore of the view that the suit was properly entertained as a Small Cause suit.
10. As regards the merits of the case it is urged by the learned Advocate for the petitioners that the learned Judge has grossly misappreciated the evidence and even taken a perverse view since the very persons who according to the plaintiff had purchased the trees alleged to have been removed by the defendants have given evidence belying such a version. It is also urged that the commissioner's report in regard to the age of the trees which are alleged to have been cut is of no legal value as he was not a person qualified to give an opinion on that matter.
It is further urged that there is no dependable evidence showing that the trees had been cut in the recent past while it was clear from the condition of the stumps that those trees had been cut many years previously. It is true that the persons who according to the plaintiff had purchased the trees or logs planks made from the trees were not examined by the plaintiff and they have given evidence as defendant's witnesses that they did not male any purchases from the defendants.
But it is not as if there is total absence of evidence on the plaintiffs side, nor can I accept the contention that the Commissioner was not competent to make a report in regard to the age of the trees. No objection was taken by the defendants tohis appointment as Commissioner, even though the purpose of the commission was known.
As regards the existence of the trees the defendants themselves have, in the reply sent on their behalf to the plaintiff's notice issued prior to the suit, stated that some trees on the land had been cut in the recent past though it was stated that it was the plaintiff who had them cut. Above all, these contentions really pertain to appreciation of evidence and it cannot be said that the manner in which the Court below has weighed the evidence is perverse or amounts to gross misappreciation.
11. I thus see no reason to interfere with the decision of the Court below and accordingly dismiss this revision petition with costs.
12. Petition dismissed.