Iqbal Ahmad, J.
1. This is a defendant's appeal and arises out of a suit for a declaration, that a certain mango tree, that had been cut by the defendant, belonged to the plaintiff and for recovery of Rs. 30 on account of damages for the mango tree so cut. The plaintiff's case was that on the 21st September 1920, he purchased the tree in question from two persons Ganga and Khurbur, who owned that tree, and as such the defendant had no right to misappropriate the timber thereof. The defence to the suit was that the tree in dispute belonged to the defendant, and that in any case the vendors of the plaintiff had not a transferable right in the tree and the sale by them was absolutely void, and that the sale in favour of the plaintiff was fictitious and without consideration.
2. The trial Court held that the sale in favour of the plaintiff was for consideration and that the defendant's allegation that the tree belonged to him and not to the vendors of the plaintiff was not correct. It further held that inasmuch as the vendors of the plaintiff were mere sub-tenants in the village and the tree in dispute was on a parti land the vendors of the plaintiff had no right to sell the tree, but relying on the case of Gobind Prasad v. Mohan Lal  24 All. 157 that Court held that even though the sale in the plaintiff's favour was of no avail as against the zemindar, the plaintiff had a possessory title to the tree and this entitled the plaintiff to a decree against the defendant. The lower appellate Court has affirmed the findings arrived at by the trial Court and has held that the plaintiff's allegation, that Ganga and Khurbur were the owners of the tree in dispute, was proved, and on that finding has, for the reasons assigned by the trial Court, affirmed the decree of that Court.
3. Against the decree of the lower appellate Court this second appeal has been filed by the defendant. A preliminary objection is taken to the hearing of the appeal, by the learned Counsel for the respondent, on the ground that the suit being of a nature cognizable by a Court of Small Causes, and the value of the subject matter of the suit being less than Rs. 500 a second appeal does not lie in this Court. The learned Counsel for the appellant has argued that the suit was of a nature that was excluded from the cognizance of a Court of Small Causes, and has placed reliance on Article 35(ii) of Sch. 2 to the Provincial Small Cause Courts Act. Before dealing with the preliminary objection taken by the learned Counsel for the respondent, I must point out that the mere fact that a declaratory relief was sought by the plaintiff would not make the decree of the lower appellate Court appealable to this Court if the relief for damages, which the plaintiff claimed, could have been obtained by him without asking for a declaration. The mere addition of a prayer for a declaration cannot prevent the suit from being of the nature cognizable by a Court of Small Causes provided it was a suit of that nature. This was the view taken in the case of Ramachandraiyar v. Noorulla Sahib  30 Mad. 101. In the present case there can be no room for doubt, that the plaintiff, on proving the facts set out in the plaint, could have been given a decree for damages claimed by him, even if a declaration of his title was not sought for by him in the plaint.
4. On the question whether or not a suit of the present nature is cognizable by a Court of Small Causes, there is a divergence of judicial opinion in this Court, It has been held by a learned Judge of this Court in the case of Kunwar Pal v. Madan Mohan. A.I.R. 1923 All. 428 that a case like the present does not come within Article 35(ii) of Sch. 2 to the Small Cause Courts Act and is cognizable by a Court of Small Causes. Whereas it has been held in the case of Dukhi v. Dhanni Misir A.I.R. 1923 All. 543 by another learned Judge of this Court that a case like the present does come within the Article mentioned above and is exempt from the jurisdiction of the Court of Small Causes. I may also point out that it has been consistently held by the Calcutta High Court that a suit like the present is not cognizable by a Court of Small Causes; vide Ram Prasad Pramanik v. Sricharan Mandal  21 C.W.N. 1109, Helaluddi Molla v. Abdul Gafur Molla  41 I.C. 936 and Lalu Sardar v. Chedali Mrioha  45 I.C. 15. In this state of conflict of judicial opinion I would not have decided this case without sending it before a larger Bench, if I were satisfied that this appeal cannot be disposed of without a determination of the point of law involved in the preliminary objection.
5. It appears to me that on the findings arrived at by the Courts below the decrees of those Courts are perfectly correct. It may be that the vendors of the plaintiff had not a transferable right in the tree sold to the plaintiff but the transfer could only be assailed by the zamindar. On the findings of the lower appellate Court, the plaintiff was in peaceful possession of the tree in dispute and had thus a possessory title which was good against the entire world except against the true owner. The defendant has been found not to be the owner of the tree and as such the case comes within the principle of law in the case of Gobind Prasad v. Mohan Lal  24 All. 157.
6. The defendant not having a shadow of right to the tree is liable to answer the claim of the plaintiff for damages.
7. The result is that I dismiss the appeal with costs.