1. This is a second appeal by the plaintiff in a suit for damages. The plaintiff alleged that the District Board of Bareilly had given him a lease of the right to collect toll at a public ferry called Haru Nagla for the period commencing in October 1939 and ending in September 1940. There was a stipulation in the lease that no other ferry would be set up within two miles of the ferry of which a lease had been given to the plaintiff. The defendants-respondents who are zamindars of a village called Dhoria which lies about a mile away from the ferry in question, set up a rival ferry on their own land and this act on their part was wrongful and it caused damage to the plaintiff inasmuch as the income which he would have otherwise obtained at the ferry in question was diverted to the ferry set up by the defendants-respondents. Upon these allegations the plaintiff claimed a certain amount as damages. The suit was brought in the Court of the Munsif, Haveli, Bareilly. An objection was taken on behalf of the defendants-respondents that the learned Munsif had no jurisdiction to try the suit inasmuch as it was a suit of a Small Cause Court nature. This objection was overruled by the learned Munsif on the ground that the suit as framed was excluded by Article 35(ii) of Schedule 2, Small Cause Courts Act. The said article runs as follows:
A suit for compensation--for an act which is, or, save for the provisions of Chap. 4, Penal Code, would be, an offence punishable under Chap. 17 of the said Code.
2. The learned Munsif was of the opinion that the act of the defendants-respondents in setting up a ferry on their own land constituted 'mischief' within the meaning of Section 425, Penal Code, which lies in chap. 17, Penal Code. Now Section 425 runs as follows:
Whoever, with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or any such change in any property or in the situation thereof as destroys or diminishes its value or utility, or affects it injuriously, commits 'mischief'.
The suit was, however, eventually dismissed by the learned Murisif on the ground that the plaintiff-appellant had really no cause of action in the civil Court because definite provisions have been made by the Northern India Ferries Act for such cases. This view was upheld also in appeal by the learned District Judge of Bareilly. The plaintiff has, therefore, come up in second appeal to this Court.
3. A preliminary objection has been raised on behalf of the defendants-respondents that no second appeal lies in this case because the suit was one of Small Cause Court nature and below Rs. 500 in valuation. The suit was valued by the plaintiff-appellant for the purposes of jurisdiction at Rs. 400. The decision of this question obviously turns upon whether the act complained of by the plaintiff-appellant does or does not amount to 'mischief within the meaning of Section 425, Penal Code. If the learned Munsif's view is correct that the act does fall within the purview of that section then the suit was not cognizable by the Small Cause Court. On the other hand, the suit was clearly cognisable by the Small Cause Court if it was not barred by Article 35(ii) of Schedule 2, Small Cause Courts Act, which has been set out above. In my judgment, it is perfectly clear upon a perusal of the language of Section 425, Penal Code, that it cannot possibly apply to a case like the present one. Section 425 refers to corporeal property and provides for eases in which such property is either destroyed or altered or otherwise damaged with a particular intention. In the present suit, we are concerned only with a right to collect toll at a public ferry. In my judgment, such a right cannot be deemed to be 'property' within the meaning of Section 425, Penal Code. It must, therefore, be held that the suit was not barred by Article 35(ii) of Schedule 2, Small Cause Courts Act. It necessarily follows that the learned Munsif had no jurisdiction whatsoever to try the suit which was of a Small Cause Court nature and again this Court cannot entertain a second appeal in such a suit.
4. The result, therefore, is that the preliminary objection raised by the the defendants-respondents must prevail and the appeal must consequently be dismissed. Learned Counsel for the plaintiff-appellant prayed that the second appeal might be treated as a revision or the plaint of the suit may be returned to him for presentation to the proper Court. In all the circumstances of the case, I am not prepared to grant the former prayer and with regard to the latter, I need only point out that if no appeal lies to this Court there can be no jurisdiction to pass any order with regard to the suit as prayed for by learned Counsel for the plaintiff-appellant. The result, therefore, is that this appeal fails and is dismissed with costs. Leave to appeal under the Letters Patent is refused.