Venkatasubba Rao, J.
1. The suit was filed as one of a small cause nature and the learned Subordinate Judge, holding that the Small Cause Court had no jurisdiction, returned the plaint for presentation to the proper Court. The correctness of that order is questioned before me.
2. The allegations in the plaint are, that the defendant took the land on lease for one year, that on the expiry of the period he continued to be in possession for another year, refusing to surrender it in spite of demands and that the plaintiff is therefore entitled to Rs. 170 as 'damages for use and occupation', that amount being a year's rent as provided by the lease deed. The short question is, whether the suit is excluded from the jurisdiction of the Small Cause Court by Article 31, Schedule II of the Provincial Small Cause Courts Act. That Article reads thus:
Any other suit for an account, including a suit by a mortgagor, after the mortgage has been satisfied to recover surplus collection received by the mortgagee, and a suit for the profits of immoveable property belonging to the plaintiff which have been wrongfully received by the defendant.
3. The view of the lower Court is supported on the ground that the present claim is in essence one for 'the profits of immoveable property' and that being so, the suit falls within the Article. On the allegations in the plaint, the defendant's possession is wrongful and he can be turned out as a trespasser. There is nothing to prevent a landlord from claiming damages from a trespasser in possession. There is a distinction between a tenant continuing in possession after determination of the lease, without the landlord's consent and a tenant doing so with the landlord's consent. Under Section 116 of the Transfer of Property Act, the latter class of tenant is called a tenant 'holding over', but the former, who in the language of the English law is known as a tenant 'by sufferance', is no better than a mere trespasser and can be turned out at any time without any notice to quit. In the case of a tenant holding over, the relationship of lessor and lessee subsists, but where, as in the present case, the tenant continues in possession against the landlord's will, his liability is ex delicto and he is liable as for a tort Karookhar v. Nauboo Singh (1875) 24 W.R. 382 . In Vira Pillai v. Rangaswami Pillai I.L.R (1898) 22 Mad. 149 it was held on similar facts that the suit was cognizable by a Court of Small Causes. I am unable to accept the contention that this decision must be treated as having been overruled. There is no doubt a conflict of judicial opinion as regards the true nature of a suit for mesne profits. Is every suit for mesne profits exempted under Article 31 or only such suits as involve the taking of accounts? While dealing with this question, the referring Judges in Savarimuthu v. Aithurusu Rowthar I.L.R (1901) 25 Mad. 103 : 11 M.L.J. 428 express dissent from Subba Rao v. Sitaramayya I.L.R.(1900) 24 Mad. 118 : 11 M.L.J. 26 and Seshagiri Aiyar v. Marakathammal I.L.R.(1898) 22 Mad. 196 where the opinion of the majority of the Judges in the Full Bench case of the Calcutta High Court in Kunjo Behary Singh v. Madhub Chundra Ghose I.L.R.(1896) 23 Cal. 884 was adopted and followed, in other words, the referring Bench was disposed to agree with the view taken by the differing Judges in the Calcutta case. But dissent is nowhere expressed by the referring Judges from Vira Pillai v. Rangaswami Pillai I.L.R.(1898) 22 Mad. 149 which, as I have mentioned above, is practically a case on all fours; indeed, on the contrary, they refer to Article 39 of the Limitation Act, which stands in contrast with Article 109 and, as the following passage in their judgment shows, recognise the difference between suits for the profits of immoveable property and suits for damages for trespass:
We may in conclusion, point out that suits of the character described in Article 39 of the Limitation Act for compensation or damages for trespass on immoveable property are not excepted from the cognizance of Courts of Small Causes see Annamalai v. Subramanyan, Lingaya Ayyavaru v. Subramanyam and Lingayya Ayyavaram v. Mallikarjuna Ayyavaru reported in the foot-note to the decision of this Court in Seshagiri Aiyar, J., Marakathammal above referred to).
4. When the case came up before the Full Bench, they made no reference to the cases from which the referring Judges differed; it is, however, said that it must be taken that by implication the Full Bench adopted the view of the referring Bench. Be that as it may, the point I wish to make is, that even the referring Judges, far from throwing any doubt upon Vira Pillai v. Rangaswami Pillai I.L.R. (1898) 22 Mad. 149, expressly approve, as the passage quoted above shows, of the principle underlying that decision. Again in Ramasami Reddi v. Authi Lakshmi Ammal I.L.R.(1910) 34 Mad. 502 the learned Judges held that a claim for mesne profits, when the plaintiff has been ousted from possession, is essentially one for damages. The difficulty seems to arise from the fact, that in most cases, the measure of the damages is the amount or the profits which the wrongdoer actually received, or might with due diligence have received, from the property; but because mesne profits often happen to be the measure in an action for damages, it does not follow that a suit for mesne profits is identical in law with a suit for damages for trespass. This distinction is clearly brought out in the judgment of Petharam, C.J., in Kunjo Behary Singh v. Madhub Chundra Ghose I.L.R.(1896) 23 Cal. 884 , already mentioned and is also adverted to in Ramaswami Reddi v. Authi Lakshmi Ammal I.L.R.(1910) 34 Mad. 502 cited above. Cases may be easily conceived where payment of mesne profits cannot be an adequate compensation; for example, if the owner of a premises enjoying from its situation special advantages, intimates to his tenant that he requires the property for his own trade but the latter wrongly continues in possession and thus deprives the owner of the profits of his trade, in such a case, mere mesne profits would hardly be an adequate measure of the damages to which the landlord would be entitled. Wallace, J., in Valliyav. Satyanarayana : AIR1932Mad554 far from dissenting, as has been suggested, m the argument from Vira Pillai v. Rangaswami Pillai I.L.R.(1898) 22 Mad. 149, impliedly affirms and approves of it.
5. The view of the lower Court is therefore, in my opinion, wrong. In the result, the Civil Revision Petition is allowed, the lower Court's order is set aside and the learned Judge is directed to receive the plaint and proceed with the suit. Costs throughout will abide the result.