1. The petitioner is the defendant who took on lease some land from the plaintiff for 1942-43. The plaintiff sued him to recover Rs. 190 as damages for use and occupation for the years 1943-44 and 1944-45 on the ground that the defendant continued in occupation and cultivation. The learned District Munsif found that defendant did not cultivate subsequent to the expiry of his lease and dismissed the suit with costs. The learned District Judge found that the land was not actually cultivated by anybody in 1944-45. He considered some evidence as regards cultivation in 1943-44 but gave no finding at all as to who actually cultivated it during this year. He decreed the suit in plaintiff's favour on the ground that the defendant failed to surrender possession after the expiry of his lease.
2. I am quite unable to follow what kind of surrender of possession the learned District Judge contemplated. These are open fields on which there was no homestead or any movable property to be surrendered and there was no necessity for any ceremony of giving and taking. All that the plaintiff had to do was to enter on the land after the expiry of the lease and take possession either by herself or by her new lessee. The sole criterion in such a suit is whether the defendant did or did not actually cultivate the lands as a tenant holding over. As regards this the learned District Munsif who heard the witnesses has clearly found that the defendant did not cultivate in 1943 D. W. 2 examined deposed that P. W. 1, the brother of the plaintiff who was looking after her affairs, leased out these lands to him on Koru for 1943-44 and that he actually raised Kusuma crops and paid him Koru rent. According to the evidence of P. W. 2, the karnam, Kusuma crop was raised in the suit lands in 1943-44. Rather curiously though karnam says that he does not know who cultivated the lands. I do not think it is necessary to remand this suit for a finding by the learned District Judge as to whether the defendant did or did not cultivate the lands in 1943-44.
3. It is stated that this is really a small cause suit which was tried on the original side and this being so, the decree was reversed in appeal without any jurisdiction by the appellate Court. There is authority for this position in Kollipara Seethapathi v. Kankipati Subbayya, 33 Mad. 323: 1 I. C. 543, where it was held that in such a case the High Court was bound to set aside the appellate Court's order as having been passed without jurisdiction. In that case it was conceded by all the parties that the suit was a small cause suit. Here no one can explain to me why this was tried as an original suit and why no objection to such a trial was taken either in the trial Court or in the appellate Court. It is taken for the first time here. I do not propose to restore the District Munsif's decree solely on this technicality. I have therefore gone into the merits. There is a clear error of law in the learned District Judge's order in his insistence on a formal giving and taking of open lands as between the lessee and the tenant on the expiry of a lease.
4. The petition must succeed and the trial Court's decree dismissing the suit with costs restored. I make however no order as to costs on this petition, in view of a position taken here which was not taken in the Courts below.Revision allowed.