1. This application must succeed. The suit was tried in the Court of Small Causes and the defendants, who are the applicants here, put forward the plea that the suit was not cognizable in the Small Cause Court. The lower court decided this issue against the defendants and gave a decree to the plaintiff.
2. It is necessary to state the facts which are relevant to the matter now under discussion. It appears that Ganesh Das, the first defendant, held a simple money decree against one Chhidda who was impleaded as defendant No. 8.
3. In execution of his decree he attached and brought to sale certain trees which were standing on the occupancy holding of his judgment-debtor.
4. After the trees had been sold, but apparently before they were cut down, the present plaintiff, Raja Suraj Pal Singh, the zamindar, brought a suit for a declaration that these trees were not liable to be taken in execution as being the property of the judgment-debtor Chhidda, but that they belonged to him. The Raja lost his suit in the first court, but lie won in the court of the District Judge in appeal on the 3rd of August, 1922. After that he applied to the court under Section 144, Civil Procedure Code, and asked that the value of the trees might be paid over to him by the decree-holder and the auction purchaser. This application was disallowed, with the result that this suit was brought on the 5th of July, 1923.
5. The above facts are all set out in the plaint. The relief claimed was Rs. 150 by way of damages arising out of the unlawful attachment and sale, in execution of the plaintiff's property.
6. The Judge of the court below disposed of the objection to jurisdiction on the ground that the claim was not a claim for compensation for wrongful attachment. In the opinion of the learned Judge it was only a case of 'damages for the trees belonging to the plaintiff and cut by the defendants.' Even so, it seems to me that if the claim was of the nature described by the learned Judge, it was still a claim which was outside the cognizance of the Court of Small Causes : Cf. Article 35, Clause (ii).
7. I agree with the argument put forward on behalf of the applicants here that this suit is really a suit of the nature described in Article 35(j) of the schedule to the Small Cause Courts Act, and that being so, it was not competent for the court below to deal with it.
8. I therefore allow this application, set aside the decree of the court below and direct that, the record be sent back to the Judge of the court below with directions to return the plaint to the plaintiff for presentation to the proper court. The applicants are entitled to their costs both here and in the court below.